China Wu Yi (Kenya) Precast Company Ltd v Muenje & 2 others (Environment and Land Case E051 of 2024) [2026] KEELC 4030 (KLR) (1 July 2026) (Ruling)

**REPULIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC CASE NO. E.051 OF 2024** **CHINA WU YI (KENYA) PRECAST COMPANY LTD::::::::::: PLAINTIFF** **VERSUS** **CATHERINE NYAMBURA MUENJE:::::::::::::::::::::::::1ST DEFENDANT** **DIRECTOR OF SURVEY:::::::::::::::::::::::::::::::::::::::: 2ND DEFENDANT** **PETWA CONSTRUCTION COMPANY LTD:::::::::::::::3RD DEFENDANT** **RULING** The 3rd Defendant raised a preliminary objection in liminie and seek the suit to be struck out with costs on the grounds that the suit herein offends mandatory provisions of Section 18(2) of the Land Registration Act. Parties filed written submission which I have read and carefully considered. The 3rd Defendant submitted that the Court does not enjoy the jurisdiction to hear the matter in view of section 18(2) of the Land Registration Act. That the provision of section 18(2) of the Land Registration Act serves to restrict the jurisdiction of the Court by committing boundary disputes to the Land Registrar for determination in the first instance. It is only after the Land Registrar has determined the dispute that the matter is escalated to this Court. The dispute between the parties relates to encroachment and hence is a boundary dispute between parcel No Mavoko Town/Block 2/119 and parcel No. Mavoko Town/Block 2/770. That he applied to be enjoined since it is the registered proprietor of parcel No Mavoko Town/Block 2/119. The 3rd Defendant Placed reliance on the following decided case law; Azzuri Limited vs Pink Properties Limited (2018) KECA 392 (KLR), Masienyi & 2others vs Chebet & another (2025) KEELC 7439 (KLR) and Shonko vs Pulei (2024) KEELC 7458 (KLR). The Plaintiff submitted that in his view the boundaries between the two plots were determined by the Surveyor in a survey report dated 8th August 2024 and beacons placed. He relied on the copy of the said survey which was filed, The Plaintiff pointed out to the Court that is has the requisite jurisdiction to hear and determine the matter. They relied on the following authorities; Owiti vs Aridi & another (2024) KEELC 610 (KLR) and Menkar Limited vs Ratilal Ghela Samat Shah & 2 others (2019) eKLR. The Court has considered the Preliminary Objection, the rival submissions and the pleadings as a whole and the issues for determination are; Whether the Plaintiffs claim is based on a boundary dispute. If so, whether the same should be dealt with under section 18(2) of the Land Registration Act; Whether the Preliminary Objection is a pure point of law. In order for a matter to be taken by the Court as a Preliminary Objection, guided by the definition of a Preliminary Objection as acknowledged in the case of **Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd** (**1969) EA 696**, it must be; *''…….. a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit”.* In **Oraro vs. Mbaja [2005] 1 KLR 141** **Ojwang, J** (as he then was) expressed himself as follows; ***“………a “Preliminary Objection” correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a Preliminary Objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true Preliminary Objection which the Court should allow to proceed. Where a Court needs to investigate facts, a matter cannot be raised as a preliminary point…Anything that purports to be a Preliminary Objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence...”*** The effect of the case law cited above means for one to succeed in putting up a Preliminary Objection, it must meet the following criteria; it must be a pure point of law; it must be pleaded by one party and admitted by the other; it must be a matter of law which is capable of disposing the suit; must not be blurred by factual details calling for evidence and finally must not call upon the Court to exercise discretion. The Plaintiff has stated his cause of action under para 6 and 7 as thus; *“6. The Plaintiff avers that from 2019 to date, without any lawful justification, the 1st defendant has either directly or indirectly through her agents, servants, employees, licencees or persons working under their instructions, trespassed and encroached onto the Plaintiff’s above mentioned property.* *7. the said encroachment and trespass were confirmed by the 2nd Defendant vide their report dated the 8th August 2023 in which the 2nd Defendant found that the 1st Defendant had encroached and trespassed into the Plaintiff’s property by quarrying stones on a section of the Plaintiff’s property measuring approximately 0.6818 Ha.”* The above averment clearly shows that the dispute is not a boundary dispute per se as the boundary dispute had already been dealt with by the survey. The Plaintiff accuses the 2nd Defendant of encroaching and trespass onto his property by quarrying stones and in its prayers inter alia, include orders of permanent injunction. Special and general damages. The 3rd Defendant has denied the claim and raised a Preliminary Objection that the suit has been prematurely brought before this Court instead of placing it before the Land Registrar for hearing and determination under section 18(2) of the Land Registration Act. The jurisdiction of this Court flows from Art 162(2) (b) of the Constitution which is read together with the provisions of section 13(2) of the ELC Act. The latter provides as follows; *“In exercise of its jurisdiction under Article 162(2) (b) of the Constitution, the Court shall have power to hear and determine disputes—* *a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;* *b) relating to compulsory acquisition of land;* *c) relating to land administration and management;* *d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and* *e) any other dispute relating to environment and land* For avoidance of doubt Section 13 of the Environment and Land Act in my view does not oust the jurisdiction of the court to determine boundaries. However, when it comes to general boundaries section 18(2) of the Land Registration Act provides in mandatory terms that the dispute should be submitted to the Land Registrar. Under the Land Registration Act Cap 300 (now repealed) Section 21(4) deprived this Court the power to entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined as provided in that section. Section 18(2), the Land Registration Act, 2012 (LRA), similarly prohibits this Court from entertaining any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined as provided in that section. It provides as follows: *“The Court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section”.* Under Section 19 of Land Registration Act, 2012 the duty to fix boundaries to registered land is vested in the Land Registrar. It provides as follows: *“19. (1) If the Registrar considers it desirable to indicate on a filed plan approved by the office or authority responsible for the survey of land, or otherwise to define in the register, the precise position of the boundaries of a parcel or any parts thereof, or if an interested person has made an application to the Registrar, the Registrar shall give notice to the owners and occupiers of the land adjoining the boundaries in question of the intention to ascertain and fix the boundaries.* *2) The Registrar shall, after giving all persons appearing in the register an opportunity of being heard, cause to be defined by survey, the precise position of the boundaries in question, file a plan containing the necessary particulars and make a note in the register that the boundaries have been fixed, and the plan shall be deemed to accurately define the boundaries of the parcel.* *(3) Where the dimensions and boundaries of a parcel are defined by reference to a plan verified by the office or authority responsible for the survey of land, a note shall be made in the register, and the parcel shall be deemed to have had its boundaries fixed under this section.* From the above provisions of the law, it is manifestly clear that the above section gives the mandate to the Land Registrar to resolve boundary disputes of land with general boundaries. The framers of section 18(2) of the Land Registration Act placed this matter before the Land Registrar who has the technical advice and resources of the District Surveyor to determine and ascertain the boundaries. It is trite law that where the law has given a legal obligation to a department of Government, it is important for the Court to let that department proceed to meet its legal obligations. In this case the the survey report filed is clear that the exercise had been done by the Regional surveyor on the 1st August 2023 concerning the boundary dispute. I find that it is after the said survey that the Plaintiff filed this suit in 2024. I find that the Preliminary Objection is not merited and I dismiss it with costs. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 1ST DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**