[2021] KEELC 4596 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT AT MURANG’A

ELC NO. 40 OF 2020

FREDRICK WAINAINA NJOROGE..................................1ST PLAINTIFF

CECILIA WAMBUI WATUKU...........................................2ND PLAINTIFF

GRACE WANGECHI NDUNGU........................................3RD PLAINTIFF

VS

STEPHEN KARIUKI NDUNGU......................................1ST DEFENDANT

THE DISTRICT SURVEYOR MURANGA...................2ND DEFENDANT

THE DIRECTOR OF SURVEY.......................................3RD DEFENDANT

RULING

1. The Plaintiffs filed suit on the 26/11/2020 against the Defendants urging the following orders;

a. A declaration that the current map of the area known as MAKUYU/MAKUYU BLOCK 1(PUNDA MILIA) was illegally and irregularly altered by the 1st Defendant and registered by the 3rd Defendant.

b. An order directed to the 2nd and 3rd Defendants to carry out a resurvey with a view to restoring the original boundaries as per the original map of the area and open up the access roads that have been blocked.

c. An order directed at the 3rd Defendant to amend the current map of the area known as MAKUYU/MAKUYU BLOCK 1(PUNDA MILIA) accordingly after the resurvey.

d. An order of injunction permanently restraining the Defendants, their agents, servants and employees from visiting and conducting boundary verification and road access for land parcel Nos MAKUYU/MAKUYU BLOCK1/1049, 1050,1052 and 1070 until the original boundaries and access roads are restored and the current survey map for the area is amended to reflect the changes accordingly.

e. Costs of the suit and interest thereon.

f. Any other order this Honourable Court deems fit and just to grant.

2. It is the Plaintiffs’ case that a boundary dispute arose on the 18/6/2020 between the 2nd Plaintiff and the 1st Defendant. That consequently they discovered that the original maps had been altered causing the 1st Defendant’s land to increase in size thus encroaching on parcel No’s MAKUYU/MAKUYU BLOCK 1/1049, 1050, 1070 and 1052.

3. That efforts were initiated to resolve the dispute with the Local Administration who recommended that the District Surveyor visit the site to verify the boundaries. This was to be done on the 30/11/2020 as per the letter of the Surveyor dated the 22/10/2020.

4. Simultaneously with the plaint, the Plaintiffs filed an application seeking interalia restraining orders against the Defendants from visiting and conducting boundary verification and road access for land parcels MAKUYU/MAKUYU BLOCK1/1049, 1050,1052 and 1070 pending the hearing of the application/suit.

5. In response to the Plaintiffs application, 1st Defendant filed grounds of opposition on the 8/12/2020 interalia that the application does not meet the set principles in granting an injunction as established in the case of Giella Vs Cassman Brown.

6. The 1st Defendant filed a Preliminary Objection on even date on the following grounds;

a. That the application and the suit relate to a boundary dispute between the Plaintiffs and the 1st Defendant.

b. That Section 18(2) of the Land Registration Act requires that boundary disputes to be first settled by the Land Registrar.

c. That the Court lacks jurisdiction to entertain the suit and or the application based on the fact that the suit is premature and should therefore disqualify itself from any further conduct of this suit and vacate the interim orders issued on the 27/11/2020.

7. The 1st Defendant submitted that the issues as they arise from the pleadings relate to a boundary dispute. The 1st Defendant urged the Court to apply the provisions of Section 18(2) of Land Registration Act (LRA). That the Land Registrar has power under Section 19 (1) of the LRA to fix boundary disputes and castigated the Plaintiffs for rushing to Court prematurely instead of allowing the boundaries to be verified. That the dispute resolution mechanism provided for in Section 19 of LRA was intended to assist parties adjudicate boundary disputes at the earliest possible time and save judicial time. The 1st Defendant placed reliance in the case of George Kamau Macharia Vs Dexka Limited (2019) EKLR and Michael Maluti & 5 Others Vs Julius Mbau Nzyuko & 2 others (2019) EKLR.

8. The Plaintiffs submitted that the suit is between the Plaintiffs on the one hand and the Defendants on the other. That there are two maps for the area; the original map reflects the ground situation while the altered map does not. That the District Surveyor in his letter dated the 22/10/2020 when giving notice of his visit cited parcel numbers that are far away from those of the Plaintiffs which parcels belong to third parties.

9. That the Plaintiffs have sought declaratory orders, an injunction, a resurvey of the subject lands and an amendment of the current map of the area. That these prayers are incapable of being granted by the Land Registrar under Section 14 of the LRA. That the issue of resurvey can only be done under Sections 15 and 16 of the LRA as read together with Sections 22, 23, 30(2) and 31 of the Survey Act. That to cure the anomaly of the existence of the two maps, it is necessary to resurvey the whole area and a new map reflecting the changes be made on the ground. That this is only possible through a Court order directing the 2nd and 3rd Defendants and that the Land Registrar has no powers to make such orders under Section 18 of the LRA.

10. Further the Plaintiff submitted that this is a matter that falls squarely within the jurisdiction of the Environment and Land Court(ELC) Act pursuant to Section 13 and 7 of the ELC Act.

11. That the Preliminary Objection is incompetent as it does not raise a pure point of law. They aver that the suit is based on fraud, errors and misrepresentation which claim can only be determined after investigation and taking evidence by the Court.

12. 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. This Court has power to hear and determine disputes interalia;

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) ……..

c) ……..

d) …..…

e) …..…

f) any other dispute relating to environment and land.

13. Section 18(2), the Land Registration Act, 2012 (LRA), 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”.

14. Under Section 19 of LRA, 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.

15. In the case of Republic v Firearms Licensing Board & Another Ex parte Boniface Mwaura [2019] eKLR Mativo Jstated as follows;

The Court of Appeal provided the Constitutional rationale and basis for the doctrine in Geoffrey Muthinja Kabiru & 2 Others – vs – Samuel Munga Henry & 1756 Others,[43] where it stated that:-

"It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews…. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts...This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution."

16. The rationale was aptly pronounced by the bench in the Matter of the Mui Coal Basin Local Community,[44]where the High Court stated thus:-

"The reasoning is based on the sound Constitutional policy embodied in Article 159 of the Constitution: that of a matrix dispute resolution system in the country. Our Constitution creates a policy that requires that Courts respect the principle of fitting the fuss to the forum even while creating what Supreme Court Justice J.B. Ojwang’ has felicitously called an “Ascendant Judiciary.” The Constitution does not create an Imperial Judiciary zealously fuelled by tenets of legal-centrism and a need to legally cognize every social, economic or financial problem in spite of the availability of better-suited mechanisms for comprehending and dealing with the issues entailed. Instead, the Constitution creates a Constitutional preference for other mechanisms for dispute resolution – including statutory regimes – in certain cases..."

17. My reading of the powers vested in this Court under Art 162 (2)(b) read together with Section 13 (2) of the ELC Act does not exclude the determination of boundaries. It is also true that Section 18 (2) prohibits this Court from hearing a boundary dispute unless the boundaries have been fixed in accordance with Section 20. In other words, the law is saying that disputes relating to general boundaries are the province of the Land Registrar under Section 19 of the said Act. The reasoning is sound because the Land Registrar is possessed of technical skills and expertise to accomplish this.

18. I concur with the legal proposition that where a statute has provided for a mechanism of dispute resolution, the Court cannot abrogate that mechanism. It is therefore pertinent that a litigant must exhaust the said mechanism before moving to the next level. In the case ofSpeaker of the National Assembly v James Njenga Karume [1992] eKLRit was stated that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.

19. I have perused the Plaintiffs claim which clearly states under para 5 that it is a boundary dispute. Para 6 clearly speaks of encroachment of the Plaintiffs parcels as well as the access road. Under Para 7-13 the Plaintiffs raise the issue of the existence of two maps whose application has led to the encroachment of their parcels and the access road. All these issues are in my respectful view within the purview of Section 18(2) and 19 of the LRA, that is to say that the Land Registrar has power to resolve.

20. The contention of the Plaintiffs that the parcels indicated in the Surveyor’s letter dated the 22/10/2020 are located far away and belong to third parties is an issue that the Land Registrar is capable of ascertaining.

21. The Director of Survey is empowered under Section 15-17 of the LRA to alter and rectify a boundary lines or position of a boundary based on a cadastral map based on subdivision plan, combination plan or any other approved plan necessitating the alteration of the boundary. The Land Registrar has repository powers under Section 19 of the LRA to affix boundaries subject to notice to the land owners.

22. The process employed by the surveyor of issuing notice of site visit and inviting the owners of the suit lands is therefore proper and within the law.

23. In the end I find the Preliminary Objection to be a pure point of law. It is accordingly upheld.

24. The application dated the 25/11/2020 and the suit filed on 26/11/2020 are hereby struck out.

25. I grant costs in favour of the 1st Defendant.

26. It is so ordered.

DELIVERED, DATED AND SIGNED AT MURANG’A THIS 28TH DAY OF JANUARY 2021

J G KEMEI

JUDGE

Delivered in open Court in the presence of;

Macharia HB for Kariuki for the Plaintiff

Mungai for the 1st Defendant

2nd & 3rd Defendants – Absent

Court Assistant; Kuiyaki