https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12728

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **ELC CASE NO. E016 OF 2021** ***KIPKURIAT FARM LIMITED…………...…………………..PLAINTIFF*** ***VERSUS*** ***MAKONE OLE NABAALA………………..……….….1ST DEFENDANT*** ***THE LANDS REGISTRAR-NAROK DISTRICT....2ND DEFENDANT*** ***THE LANDS SURVEYOR-NAROK DISTRICT……3RD DEFENDANT*** ***SANKALE OLE NABAALA (SUING ON*** ***BEHALF OF THE ESTATE OF*** ***THE LATE JOSEPH LEMOMO NABAALA)…INTERESTED PARTY*** **RULING** 1. The matter for determination is the ***Notice of Preliminary Objection*** dated ***11th May 2026,*** filed by the Interested Party herein ***Sankale Ole Nabaala*** suing on behalf of the estate of the late ***Joseph lemomo Nabaala*** in opposition to the Plaint dated ***10th August 2021,*** on the following grounds: 2. ***THAT the suit as instituted offends Section 18(2) of the Land Registration Act, 2012, the dispute being a boundary matter reserved exclusively for the Land Registrar.*** 3. ***THAT the suit is frivolous, vexatious and an abuse of the court’s process.*** 4. The Interested Party filed his written submissions dated ***29th May 2026,*** in support of the ***Notice of Preliminary Objection***, while the Plaintiff responded to the Notice of Preliminary Objection by filing its written submissions dated ***30th May 2026***. 5. The Interested Party submitted that this Court lacks the requisite jurisdiction to entertain the Plaintiff’s suit as it offends ***Section 18(2)*** of the ***Land Registration Act***. Further, that the dispute before this Court concerns boundaries between registered parcels of land, and which ***Section 18(2)*** of the ***Land Registration Act*** confers jurisdiction to the Land Registrar. 6. The Interested Party also submitted that the Plaintiff has not brought any evidence before this Court to show that he first invoked the jurisdiction of the ***Land Registrar*** before approaching this court, and prays that the plaintiff’s suit be struct out or dismissed for want of jurisdiction. 7. In response, the Plaintiff submitted that the boundary dispute was already determined by the ***District Land Registrar,*** and a boundary Report dated ***7th September 2012,*** prepared by the then District Land Registrar, ***P.M Mengi*** was filed before this Court by the 1st Defendant as ***Document No. 8 in the 1st Defendant’s list of documents.*** 1. The Plaintiff further submitted that he does not dispute the fact that the statutory process undertaken, but instead he challenges the manner in which the boundary determination was conducted. The plaintiff argued that the process was conducted without its participation, in circumstances that were irregular and unfair thereby violating the rules of natural justice. 2. The Plaintiff further submitted that its position is corroborated by the 2nd Defendant’s letter dated ***21st June 2024*,** addressed to this Court, wherein the ***District Land Registrar*** confirmed that the common boundary beacon identified as ***R48*** had been moved, thereby creating new boundaries without the involvement of the plaintiff. 3. Upon careful consideration of the rival written submissions by the Interested Party and the Plaintiff, this court identifies the following issues for determination: 4. ***Whether this Court has the jurisdiction to handle the present matter*** 5. ***Who bears the costs of these proceedings?*** ***ANALYSIS*** 1. ***Whether this Court has the jurisdiction to handle the present matter*** 2. A Preliminary Objection is well defined in the various judicial decisions. The Supreme Court of Kenya in ***PETITION NO. 19 (E022) of 2020,*** held as follows; *“****The principles established by the time-honored, Mukisa Biscuit Manufacturing Co Ltd v. West End Distributors (1969) EA 696, cited with approval by this Court in Hassan Ali Joho Case (supra) are settled that****;* ***“a preliminary objection consists of 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. Examples are an objection to the*** ***jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration….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 has to be ascertained or if what is sought is the exercise of judicial discretion.”*** 1. It is trite that the issue of jurisdiction ought to be raised at the earliest opportunity, and jurisdiction is everything; without it, the court has no option but to down its tools, as was held in the landmark case of ***Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] eKLR*,** where the Court stated as thus**:** *“****I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction****.”* 1. Being guided as above, this court is required to first determines whether it has jurisdiction to determines or presides over the issues before it, before further proceedings with the case. To determine this, the court has to examine the Plaintiff’s pleadings, claim and prayers sought. 2. The Plaintiff vide his Plaint dated ***10th August 2021,*** at **paragraph 5** of its Plaint avers that around the month of ***September 2012***, the 1st to 3rd Defendants herein visited Plot Number ***Narok/Olchorro Oirowua/98*** (belonging to the 1st Defendant) purporting to execute a ***non-existent court Order***, and altered the boundary between the Plots ***Number NAROK/OLCHORRO OIROWUA/12*** (belonging to the plaintiff) and ***98*** (belonging to the 1st Defendant) and by a mutation ***MUT/NAR/2794/9/12,*** received on the ***19th September 2012,*** by the 3rd Defendant, the Map was amended whereby a large portion of approximately ***150 acres*** of the Plaintiff’s Land Parcel Number ***Narok/Olchorro Oirowua/12,*** was curved out and added to the 1st Defendant’s land parcel without any lawful justification and trickery of enforcing a court order. 3. The Plaintiff further averred at **paragraph 7** of its Plaint that these amendments done affected his parcel of land, and that he was condemned unheard. At paragraph 9(5), the Plaintiff averred that this exercise led to the Defendants fraudulently curving out a portion of approximately ***150 acres*** of its land without any lawful justification. 4. Lastly, the Plaintiff prays for ***cancellation*** of these amendments, and an order directing the 2nd Defendant to ascertain the boundaries according to the Original Map. 5. It is clear from the Plaintiff’s pleading brings out an amalgamation of a boundary dispute between Land Parcels No. ***Narok/Olchorro Oirowua/12 and 98,*** and an element of a claim for land being the ***150 acres*** allegedly curved from the Plaintiff’s Parcel of land. The Plaintiff is clearly aggrieved with the manner in which the 2nd and 3rd Defendants resolved the boundary dispute. 6. ***Section 18(1) of the Land Registration Act, 2012,*** provides as follows: ***“Except where, in accordance with***[***section 20***](https://kenyalaw.org/akn/ke/act/2012/3/eng%402022-12-31#part_II__sec_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.”*** **Sub Section 2 of the said Section 18** 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.”*** 1. Further**, *Section 19 of the Land Registration Act 2012,*** states that: ***“(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.***” 1. Therefore, it is clear from the above provision of law that the ***Land Registrar*** ought to settle a boundary dispute before a party approaches the court. 2. The Plaintiff submitted that the boundary dispute herein was already determined by the ***District Land Registrar*** and a boundary Report dated ***7th September 2012,*** prepared by the then District Land Registrar, ***P.M Mengi*** was filed before this Court by the 1st Defendant as ***Document No. 8 in the 1st Defendant’s list of documents*.** 3. This court has considered the 1st Defendant’s ***Document No 8,*** which is at ***pages 29-31*** of the 1st Defendant’s trial bundle and concurs with the Plaintiff that indeed, the ***Land Registrar’s*** jurisdiction was already invoked. 4. For the above reason, the ***Notice of Preliminary Objection*** dated ***11th May 2026,*** is found ***unmeritorious,*** and cannot stand. 5. This does not however infer that this Court is clothed with the jurisdiction to entertain the Plaintiff’s claim as presented. The plaintiff in his submissions submitted that it does not dispute the fact that the statutory process was undertaken, but instead it challenges the manner in which the boundary determination was conducted. The Plaintiff argued that the process was conducted without its participation, in circumstances that were irregular and unfair thereby violating the rules of natural justice. 6. Therefore, it is evident that the Plaintiff is not merely challenging the outcome of the proceedings before the ***Land Registrar,*** but also impugning the procedure adopted, and the manner in which the Land Registrar conducted those proceedings. A perusal of the Plaint dated ***10th August 2021,*** clearly demonstrates that the Plaintiff's grievances are directed both at the decision itself and the process leading to its rendition. 7. In the premises, the Plaintiff ought to have invoked the appellate mechanism provided under the applicable law to challenge the ***Land Registrar's decision***, rather than instituting a fresh suit before this Court. The present suit, being an attempt to challenge both the process undertaken by the ***Land Registrar*** and the ***resultant decision*** through a separate action, is therefore improperly before this Court. 8. ***Regulation 40 (6) of the Land Registration (General) Regulations [Legal Notice No. 278 of 2017*]** states that: ***“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.”*** 1. This statutory framework does not contemplate the filing of a boundary dispute before this Court as an original cause of action. This Court can only be properly seized of such a dispute in the exercise of ***its appellate jurisdiction*** following the determination of the matter by the Land Registrar in accordance with the law. 2. In the case of ***Kibe & another v Lemeiruko & another; Gakumo (Interested Party) ((Suing as The Legal Representative of the Estate Danson Gakumo Kihoro)) (Environment & Land Case 802 of 2024 & 63 of 2019 (Consolidated)) [2025] KEELC 600 (KLR) (11 February 2025) (Judgment),*** the court held thus: *[Para 17****]”…………………. it is not envisaged that a boundary dispute would be led in this court except in its appellate jurisdiction…….”*** 1. Relying on the above provision of law, and the decided cases, this court finds and holds that it was improperly moved, as the Plaintiff ought to have come to court through the appellate route, and not through a fresh suit or new cause of action. To that extent the court finds that the suit herein is incompetent and bad in law. 2. ***Who bears the costs of these proceedings?*** 3. It is trite law that costs follow the event as was held by the Supreme Court of Kenya in ***Jasbir Singh & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR,*** wherein it stated that; ***“……the award of costs would normally be guided by the principle that, “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails…...”*** 4. Accordingly, the Plaintiff, being aggrieved by the decision of the ***Land Registrar***, was required to invoke the appellate procedure prescribed under the law. Instead, it instituted the present suit by way of a Plaint, thereby inviting this Court to exercise original jurisdiction wherein the statute contemplates only appellate intervention. The procedure adopted by the Plaintiff is contrary to the statutory framework governing challenges to the Land Registrar's decision. 5. Consequently, the Plaintiff’s suit vide the Plaint dated ***10th August 2021*** is found to be ***incompetent*** and is hereby ***struck*** out entirely with costs. ***It is so Ordered.*** ***Dated, signed and Delivered virtually, this 6th day of August, 2026.*** ***L. GACHERU*** ***JUDGE*** **06/08/2026** ***Delivered online in the presence of:*** ***Boniface Maluki – Court Assistant*** ***Mr. Karia for the Plaintiff*** ***No appearance for 1st Defendant*** ***No appearance for 2nd and 3rd Defendant*** ***Mr. Tanyasus for Interested party*** ***L. GACHERU*** ***JUDGE*** **06/08/2026**