[2021] KEELC 4255 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT ELDORET

CIVIL SUIT NO. 55 OF 2020

KIPRONO CHEMCHOR KENTAGOR...................................................................PLAINTIFF/ APPLICANT

VERSES

BOIT THOMAS KIMUTAI.........................................................................1ST DEFENDANT/ RESPONDENT

MORUBUCH WILLIAM.............................................................................2ND DEFENDANT/ RESPONDENT

BOIT KIPKETER WILSON.......................................................................3RD DEFENDANT/ RESPONDENT

KIPTUM CHEBOR.....................................................................................4TH DEFENDANT/ RESPONDENT

LAGAT SAMMY BARCHILEI..................................................................5TH DEFENDANT/ RESPONDENT

COUNTY LAND REGISTRAR ELGEYO MARAKWET COUNTY....6TH DEFENDANT/ RESPONDENT

RULING

This ruling is in respect of a notice of a preliminary objection dated 5th October 2020 to the plaintiff/applicant’s application dated 21st September 2020 on the grounds that

a) This Honourable Court lacks jurisdiction to entertain the Application and the suit filed herein by dint of section 18 (2) of the Land Registration Act No. 3 of 2012 Laws of Kenya which states 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.

a) The Plaintiff/ Applicant’s Claim for adverse possession in his Application and Plaint all dated 21st September, 2020 is fatally defective as the registered owners are deceased;

b) The 1st, 2nd, 3rd, 4th and 5th Defendant/ Respondents lack locus standi to respond to the claim advanced by the Plaintiff/ Applicant.

The plaintiff/applicant had filed an application for temporary injunction against the defendants and counsel agreed to canvas both applications by way of written submissions.

PLAINTIFF/APPLICANT’S CASE

It was the applicant’s case that on 21st August, 2020 the Defendant/ Respondents sent a surveyor to put beacons on the Plaintiff/ Applicant’s land and the said beacons were at variance with the sisal boundary that the Plaintiff/ Applicant alleges to have been in existence since 1961.

The applicant further stated that the surveyor informed the Plaintiff/ Applicant that the boundary as indicated in the map within his possession was accurate but the Plaintiff/Applicant contended that the sisal boundary that was in place was accurate following a survey exercise that was allegedly conducted in the year 1976.

The applicant annexed a copy of the title deed over land reference number E/MARAKWET/KATUMOI/364issued on 6th February, 2006 which bears the Plaintiff/ Applicant’s name. Further that on 12th September, 2020 a meeting was held at the Chief’s office where deliberations were made and it was concluded that the sisal boundary remains in place as per the Minutes filed in Court.

DEFENDANT/RESPONDENTS’ CASE

The respondent stated that the Plaintiff/ Applicant’s property land reference number E/ MARAKWET /KATUMOI /364share a boundary with the land reference number E/ MARAKWET /KATUMOI /363which property is registered in the names of Paul Boit Kipserem and Samwel Boit who are both currently deceased.

It was the respondent’s case that they are beneficiaries of deceased persons and as such they have beneficial interests over land reference number E/ MARAKWET /KATUMOI /363therefore instructed a surveyor to conduct a beacon picking exercise on land reference number E/ MARAKWET /KATUMOI /363and the exercise resulted in the dispute that caused the Plaintiff/ Applicant to make a claim in Court alleging that the sisal boundary was an accurate marker of the boundaries for land reference number E/ MARAKWET /KATUMOI /364 while the Defendant/ Respondents contest that the said sisal was on land reference number E/ MARAKWET /KATUMOI /363.

It was further the respondent’s case that the surveyor was under their instructions to implement the position reflected on the Kenya Survey Map and the Land Register. That the applicant was a member of the adjudication committee in 1976 but that the Plaintiff/ Applicant did not raise an objection to the boundaries as drawn and therefore the cause of action in this matter is a boundary dispute that ought to be presented before the Registrar.

ANALYSIS AND DETERMINATION

The court will first determine whether the preliminary objection has merit and if it is in the affirmative then there will be no need to determine the application for injunction. In the renowned case of MukisaBiscuit Manufacturing Co. Ltd –vs.- West End Distributors (1969) EA 696provided a threshold that must be met for a Preliminary Objection to be upheld and the standard is as follows:

‘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’.”

The issues raised must be purely points of law which do not require the court to look elsewhere for evidence to prove certain facts.

From the pleadings and the application, the plaintiff is seeking for a declaration that the map relied on by the defendant to claim the land is not proper and an order directing the County Land Registrar to regularize the maps at the Iten Survey office. There is an alternative prayer of adverse possession.

The pleadings and the supporting affidavit indicate that there is a boundary dispute as the two parcels of land E/ MARAKWET /KATUMOI /364share a boundary with the land reference number E/ MARAKWET /KATUMOI /363. It is evident that this case was triggered by the defendant engaging the survey office to carry out a survey on the suit land.

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

Similarly, 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.

In the case of GEORGEKAMAU MACHARIA V DEXKA LIMITED [2019] eKLRthe court held as follows:

“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 office of the Land Registrar is mandated to deal with the general boundary dispute first before the same is escalated to the Court. It is the view of this Court that the dispute is prematurely before the Court.”

The court is well aware that it should not usurp the powers of the Land Registrars in respect to matters under their mandate. This would be duplicating functions and wasting the limited resources for adjudication of disputes and access to justice.

In the foregoing, the applicant is under an obligation to first seek redress or resolution from the Land Registrar before moving or escalating the dispute to this court as was held in the case of Wills Ocholla vs. Mary Ndege (2016)eKLR,

I am in agreement with the respondent’s submission that this court does not have jurisdiction to with this case as it is a boundary dispute.

The applicant’s contention that a claim of adverse possession cannot be made in respect of the estate of a deceased person does not hold water as was held in the case of PHYLLIS WANJIRU KAMAU V WILSON GICHUHI GACHAGWE & 2 OTHERS [2019] eKLR.Similarly the Court of Appeal analysed the provisions of section 30(f) of the Registered Land Act (now repealed) and section 2 of the Law Reforms Act in KARUNTIMI RAIJI V. M’MAKINYA M’ITUNGA (2013)eKLR as follows-

“…Another issue raised by the appellant is that a claim for adverse possession does not survive a deceased person. Section 30 (f) of the Registered Lands Act and Section 2 of the Law Reform Act provide an answer to the issue. Section 30(f) provides that:

30. Unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interests as may for the time being subsist and affect the same without them being noted on the registers:

(f) rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or by prescription;

Section 2 (1 ) of the Law Reform Act stipulates that on the death of any person, all causes of action subsisting against or vested in him shall survive against or as the case may be, for the benefit of, his estate. The proviso to the sub-section indicates the causes of action that do not survive namely defamation or seduction or inducing one spouse to leave or remain apart from the other or to claims for damages on the ground of adultery.”

This makes it clear that a claim of adverse possession is not extinguished by the death of the lawful proprietor.

Having found that this case falls under Section 18(2) of the Land Registration Act I will not therefore determine the merits of an application for injunction. The other issues raised in the preliminary objection do not meet the threshold of a preliminary objection as they will require evidence to prove them. The preliminary objection is therefore upheld with costs to the defendants. The applicant has an opportunity to follow the right process with The Land Registrar to fix the boundary.

DATED and DELIVERED at ELDORET this 28th DAY OF JANUARY, 2021

M. A. ODENY

JUDGE