https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5119

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND COURT AT KAKAMEGA** **ELC SUIT NO. E001 OF 2022** **EVANS ANAKAYA RAGAI…………………………….……..PLAINTIFF** **VERSUS** **COUNTY GOVERNMENT OF KAKAMEGA…..…1ST DEFENDANT** **CHIEF OFFICER, ROADS AND ENERGY………2ND DEFENDANT** **CHIEF OFFICER, LANDS HOUSING, URBAN AREAS & PHYSICAL PLANNING………………………….……3RD DEFENDANT** **BRIAN MAFUNGA………………………………..……4TH DEFENDANT** **RULING** **Introduction** 1. This ruling is in respect of the preliminary objection raised by the defendant as pleaded at paragraph 14 of the statement of defence dated 3rd March 2022 and filed by the 1st, 2nd and 3rd defendants, challenging the jurisdiction of this Honourable Court to entertain this suit. 2. The preliminary objection is premised on the ground that the plaintiff's claim is, in substance, a boundary dispute. The defendants contend that the plaintiff ought to have first sought redress before the Land Registrar for the ascertainment and determination of the boundaries relating to land parcel No. Kakamega/sergoit/69 before invoking the jurisdiction of this court. 3. The preliminary objection was canvassed by way of written submissions. On record are the defendants' submissions dated 23rd April 2026 and the plaintiff's submissions dated 7th July 2026, both of which the court has duly considered. **Defendants’ submissions** 1. It is the defendants' submissions that whereas the plaintiff alleges that the defendants unlawfully created a road through land parcel No. Kakamega/sergoit/69, the defendants maintain that the impugned works were undertaken strictly within an existing public road reserve. 2. According to the defendants, the dispute emerging from the pleadings is whether the alleged road falls within the plaintiff's parcel of land or within an existing public road corridor. They submit that this is a question that directly invokes section 18(2) of the Land Registration Act, thereby barring this court from assuming jurisdiction before the Land Registrar has first ascertained the boundary. The defendants further argue that the rationale behind section 18(2) of the Act is both practical and deliberate, as boundary disputes involve technical issues that are best determined in the first instance by the land registrar in conjunction with the survey department. 3. Reliance was placed on the cases **of Oraro v Mbaja [2005] 1 KLR 141** and **Wainaina Njoroge & 2 Others v Stephen Kariuki Ndungu & 2 Others [2021] KEELC 4596 (KLR)** among others. **Plaintiff’s submissions** 1. The plaintiff, on the other hand, relied on the case of **Mukisa Buiscuits Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696,** and contended that the issues raised are disputed and cannot be resolved as a preliminary objection. It is the plaintiff's position that the dispute concerns whether the matter involves two registered parcels of land or a dispute between a registered proprietor and third parties, which is an issue that can only be determined upon the evaluation of evidence. 2. The plaintiff submits that a fair determination of the preliminary objection requires the parties to adduce evidence and be subjected to cross-examination, as several contested facts must first be established. Consequently, the plaintiff argues that the objection raises issues of fact rather than pure points of law. 3. The plaintiff further submits that the defendants have no proprietary interest in the neighbouring parcel but are merely third parties acting in the purported public interest. It is also contended that the road in question is not itself a registered parcel capable of being subjected to the jurisdiction of the Land Registrar under the Land Registration Act. The plaintiff further states that the registered proprietor of the parcel situated across the road has no dispute with the plaintiff regarding either the existence or the dimensions of the road. Accordingly, the plaintiff maintains that the dispute raises technical evidentiary issues, particularly in light of the existence of determined two conflicting survey reports, and therefore cannot properly be by way of a preliminary objection. Reliance was placed on article 159 of the Constitution of Kenya, and the court was urged to dismiss the preliminary objection with costs. **Analysis and determination** 1. The court has carefully considered the preliminary objection, the rival submissions by the parties, and the applicable law. The issues for determination are; 2. **Whether the preliminary objection raised is a proper preliminary objection;** 3. **Whether the preliminary objection is merited; and** 4. **Whether this court has the requisite jurisdiction to hear and determine this suit.** 5. In determining whether a preliminary objection is a proper preliminary objection, the threshold is that the same ought to raise a pure point of law predicated on undisputed facts. 6. In the case of **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors ltd (1969) EA 696** it washeld as follows: ***“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.” Underlined for emphasis”*** 1. In the instant matter, the preliminary objection raised is that this court has no jurisdiction to determine the dispute herein and that the same ought to be determined by the Land Registrar. In my view the question that has been raised is a pure point of law and can be determined on what is not disputed in the pleadings and I therefore find and hold that the preliminary objection is a proper preliminary objection. 2. Jurisdiction is the power of the court to hear and determine a dispute. Without it a court cannot determine a dispute. Jurisdiction is everything. A court ought to establish if it has jurisdiction before embarking on determining a dispute. 3. In the case of **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR),** the court in discussing the issue of jurisdiction stated: ***“A question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter was then obliged to decide the issue right away on the material before it. Jurisdiction was everything. Without it, a court had no power to make one more step. Where a court had no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downed tools in respect of the matter before it the moment it held the opinion that it was without jurisdiction.”*** 1. A court’s jurisdiction flows from the Constitution or Statute of both. In **Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR),** the Supreme Court held as follows: “***A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law could only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which was conferred upon it by law. The issue as to whether a court of law had jurisdiction to entertain a matter before it, was not one of mere procedural technicality; it went to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings.”*** The court further held: ***“Where the Constitution exhaustively provided for the jurisdiction of a court of law, the court must operate within the constitutional limits. It could not expand its jurisdiction through judicial craft or innovation. Nor could Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution conferred power upon Parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”*** 1. Section 18 of the Land Registration Act bars this court from hearing and determining general boundary disputes and vests such jurisdiction in the Land Registrar. The same provides as follows; ***“18. Boundaries*** | | | | | --- | --- | --- | | ***(1)*** | ***Except where, in accordance with section 20, it is noted in the register that the boundaries of a parcel have been fixed, the cadastral map and any filed plan shall be deemed to indicate the approximate boundaries and the approximate situation only of the parcel.*** | | | ***(2)*** | | ***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.*** | | | | | --- | --- | | ***(3)*** | ***Except where, it is noted in the register that the boundaries of a parcel have been fixed, the Registrar may, in any proceedings concerning the parcel, receive such evidence as to its boundaries and situation as may be necessary:*** ***Provided that where all the boundaries are defined under section 19 (3), the determination of the position of any uncertain boundary shall be done as stipulated in the Survey Act (Cap. 299).”*** | 1. Regulation 40 of the Land Registration (General) Regulations (Legal Notice No. 278 of 2017) provides for re-establishing a missing boundary or ascertaining a boundary in a dispute as follows; ***“Application for re-establishing a missing boundary or ascertainment of a boundary in dispute;*** * + 1. ***An interested person may apply to the Registrar for the ascertaining of a missing boundary or a boundary in dispute under section 18(3) of the Act in Form LRA 23 set out in the Sixth Schedule.*** 2. ***The Registrar shall issue a notice in Form LRA 24 set out in the Sixth Schedule to all persons appearing in the register that may be affected or such other persons as the Registrar may deem necessary for resolution of the dispute if a person has complied with paragraph (1).*** 3. ***The Registrar shall notify the office responsible for survey of land of the intended hearing of a boundary dispute and require their attendance if a person has complied with paragraph (1).*** 4. ***In determining a boundary dispute lodged in accordance with paragraph (1), the Registrar shall be guided by the recommendation of the office responsible for survey of land.*** 5. ***The Registrar shall, after giving all persons appearing for the hearing in accordance with the notifications sent under paragraphs (1) and (2) an opportunity to be heard, make a determination of the dispute and inform the parties accordingly.*** 6. ***Any party aggrieved by the decision of the Registrar made under paragraph (5) may, within thirty days of the date of notification, appeal the decision to the Court.*** 7. ***Upon expiry of thirty days, the Registrar shall—*** - 1. ***Cause to be defined by survey the precise position of the boundaries in question;*** 2. ***File a plan approved by the authority responsible for survey of land containing the necessary particulars; and*** 3. ***Make a note in the register that the boundaries have been fixed, and thereupon the plan shall be deemed to define accurately the boundaries of the parcel.*** 8. ***A dispute for determination of a boundary and or parcel shall, unless in the case of special circumstances, be completed within a period not exceeding six months from the date of filing the application.”*** 1. Therefore, disputes relating to general boundaries cannot be resolved in the first instance by this court. The determination of the same are by the Land Registrar, who takes evidence and inspects the locus in quo, with the relevant assistance of the director of surveys so as to ascertain the boundary with precision. 2. Essentially, this court’s jurisdiction can only be invoked where the parties are dissatisfied with the Land Registrar’s decision as the court has no original jurisdiction in regard to boundary disputes relating to general boundaries. 3. In **Azzuri Limited v Pink Properties Limited [2018] KECA 392 (KLR)**, the Court held as follows: ***“On our part, looking at the impugned judgment, it is clear to us that the decision of the trial court was primarily based not only on the weight of the evidence, but on the failure by the appellant to follow the laid down grievance handling mechanism; namely, referral of the dispute to the Land Registrar as per section 18 of the Land Registration Act. It is common ground that the suit land is in a general boundary area (as opposed to a fixed boundary area). Resolution of disputes in a general boundary area is provided for under section 18 (supra)...*** ***This means that under the aforesaid provisions, boundary disputes pertaining to lands falling within general boundary areas must be referred to the Land Registrar for resolution; while disputes pertaining to lands with fixed boundaries may be investigated and possibly resolved simply through a surveyor.”*** 1. Similarly, in the case of **Nzau v Kemei & 2 others (Environment & Land Case 70 of 2023)[2025] KEELC 526 (KLR) (12 February 2025) (Ruling) Neutral citation: [2025] KEELC 526 (KLR),** the court held that the Environment and Land court had no original jurisdiction to determine a boundary dispute concerning general boundaries. 2. In the instant case, the plaintiff pleaded that on 28th January 2022 the defendants trespassed on his parcel No. Kakamega/Sergoit/69 fell trees, destroyed the fence and grabbed a portion measuring 400 meters purporting to create a public access road linking the main road to the parcel owned by the 3rd defendant. On the other hand, the 1st to 3rd defendants in their defence maintained that there is a road popularly referred to as Aragai Junction – Lunani Cattle Dip Road which has been in existence as shown by the Sergoit Settlement Scheme Map and that they intend to gravel it having done public participation. 3. From the tile held by the plaintiff, it is undisputed that it refers to general and not fixed boundaries. This means that the court is being asked to determine whether there is a public road between the plaintiff’s parcel and that of the 3rd defendant. For that question to be answered, the court would be required to undertake a site visit, take evidence from the persons on the ground and examine the Registry Index Maps in regard to the two parcels. That activity is not within the jurisdiction of this court. The same is within the purview of the Land Registrar’s jurisdiction. 4. The plaintiff submitted that for a dispute to be a boundary dispute there must be two registered parcels sharing a common boundary and that since a public road is not registered there can be no boundary dispute. That argument is oblivious of two important facts; one that roads have no registration numbers like private land but they have owners and can be identified on registered survey maps and on the ground. Under Article 62 (1) (h), public roads constitute public land, and so public roads have known owners who are the Kenyan people. Secondly, a boundary dispute is not just about two abutting parcels owned by private individuals, even where there is a complaint of blocking of an access road where the claimant’s land does not border the respondent’s land, that would still amount to a boundary dispute. 5. In the instant case the plaintiff by design or default failed to disclose the registration number of the 4th defendant’s land yet he alleges that the 1st, 2nd and 3rd defendants were creating an access road to the latter’s land. By failing to mention the registration number of the 4th defendant’s land, the plaintiff was merely doing failing to disclose material facts. Just because the 4th defendant’s title is not mentioned does not alter the fact that the dispute herein is a boundary dispute. A party who withholds relevant information so as to disguise his claim does not change the nature of the dispute, he only makes it clear that his claim is made in bad faith and that he has approached court with unclean hands. 6. In the premises, I find and hold that this court lacks jurisdiction to hear and determine this suit and the same is hereby struck out with costs, for want of jurisdiction. 7. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 22ND DAY OF JULY 2026** **A. NYUKURI** **JUDGE** **In the presence of;** No appearance for the plaintiff No appearance for the defendants Court Assistant- Delphine