[2009] KEHC 3096 (KLR)
The court found that the dispute between the parties was a boundary dispute concerning adjoining parcels of registered land. Section 21 of the Registered Land Act expressly requires that such disputes must first be determined by the District Land Registrar before the court can assume jurisdiction. Since this...
Source-derived case information.
- Citation
- [2009] KEHC 3096 (KLR)
- Parties
- Plaintiff: Malak Onuong’a Machoka; Defendant: Ashwin Gudka
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 33 of 2005
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- suit struck out for want of jurisdiction
- Legal Topics
- Boundary Disputes, Jurisdiction of Court, Registered Land Act, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Malak Onuong’a Machoka
Plaintiff
Ashwin Gudka
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the High Court has jurisdiction to hear a boundary dispute before determination by the District Land Registrar.
- 2 Whether the suit should be struck out for failure to comply with Section 21 of the Registered Land Act.
Ratio Decidendi
The court found that the dispute between the parties was a boundary dispute concerning adjoining parcels of registered land. Section 21 of the Registered Land Act expressly requires that such disputes must first be determined by the District Land Registrar before the court can assume jurisdiction. Since this statutory procedure had not been followed, the court held that it lacked jurisdiction to hear and determine the suit. Consequently, the suit was struck out with costs awarded to the defendant.
Court Disposition
suit struck out for want of jurisdiction
Orders
- The suit is struck out with costs to the defendant.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CIVIL CASE 33 OF 2005
MALAK ONUONG’A MACHOKA……………………….PLAINTIFF
VERSUS
ASHWIN GUDKA……..……………………….……….DEFENDANT
RULING
The plaintiff filed a suit against the defendant and alleged that the defendant had trespassed onto his property known as Kisii Town/Block II/210, hereinafter referred to as “the suit property”. On the suit premises there is erected rental houses and other out buildings. The plaintiff claimed that sometimes in March, 2005 the defendant unlawfully entered on the suit property and destroyed the fences and other out door buildings and started his construction. The plaintiff sought an order of injunction to restrain the defendant, his servants and/or agents from trespassing onto the suit property. The plaintiff also sought general damages for trespass as well as unspecified special damages.
The defendant filed a statement of defence and denied the plaintiff’s claim. In paragraph 12 of the defence the defendant stated as follows;-
“12. The defendant shall raise a preliminary issue that this suit is prematurely filed in this court and this court has no jurisdiction to hear and determine the same as suit and the defendant’s land are adjoining each other and S.21 of the Registered Land Act, Cap 300 has yet to be complied with and that therefore this suit be struck out”.
When this suit came up for hearing on 19th May, 2009 the plaintiff’s advocate made an application for adjournment on the grounds that:
(i) The District Land Registrar and Surveyor were due to visit the suit but that had not been done.
(ii) The Plaintiff had a sick patient and had not attended court.
Mr. Soire for the defendant opposed the application and stated that:
(a) The hearing date had been taken by consent on 10th November, 2008.
(b) The plaintiff’s advocate had failed to respond to his suggestion that the dispute be referred to the District Land Registrar for determination.
The court disallowed the application for adjournment and directed that the hearing proceeds at 10. 00a.m. Come that time and neither Miss Obaga for the plaintiff nor the plaintiff were in court. Mr. Soire argued the preliminary objection in terms of paragraph 12 of the defence as quoted hereinabove.
I agree with the defendant that this is a boundary dispute between the parties herein. Section 21 of the Registered Land Act is explicit that in such a matter, this court lacks jurisdiction unless the dispute has first been determined by the area District Land Registrar. That has not been done in this case. Consequently, I find and hold that this court has no jurisdiction to hear and determine this suit. The suit is struck out with costs to the defendant.
DATED, SIGNED and DELIVERED at KISII this 12th day of June, 2009
D.MUSINGA.
JUDGE.
12/6/2009
Before:D.Musinga. J
Mobisa-CC
No appearance for the Applicant
No appearance for the Respondent
COURT: Judgment delivered in open court on 12th June, 2009.
D.MUSINGA
JUDGE