Munene & 2 others v Rosslyn Garden Villas Ltd & another (Environment and Land Case E107 of 2026) [2026] KEELC 4742 (KLR) (23 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELCLC NO. E107 OF 2026** **JOSEPHINE WANDIA MUNENE.…….....................…1ST PLAINTIFF/APPLICANT** **TARCISIUS NIITA………………….….......................…..2ND PLAINTIFF/APPLICANT** **CATHERINE NIITA…….…………….......................……3RD PLAINTIFF/APPLICANT** **-VERSUS-** **ROSSLYN GARDEN VILLAS LIMITED…….....…..1ST DEFENDANT/RESPONDENT** **MOMUX INVESTMENT LIMITED………......…….2ND DEFENDANT/RESPONDENT** **RULING** 1. Before me is the notice of motion dated 23rd March, 2026 filed by the plaintiffs/applicants and it is expressed to be brought under **Order 40 Rules 1 and 2, Order 51 Rule 1** of the **Civil Procedure Rules** and **Section 3A and 63 of the Civil Procedure Act** seeking the following orders:- 2. ***Spent.*** 3. ***Spent.*** 4. ***That pending the hearing and determination of this suit, a temporary order of injunction restraining the defendants whether by themselves, their agents, servants, contractors or employees from demolishing and realigning the boundary wall adjoining Mandera Villas No. 12 and 14 erected on Land Reference No. 28431 (original number 18/31) on its southern boundary with Land Reference No.28429 or interfering in any manner whatsoever with the Plaintiff’s quiet enjoyment of their properties.*** 5. ***Costs be provided for.*** 6. The application is premised on the grounds inter alia that the defendants/respondents legal representatives have threatened to unilaterally demolish the boundary wall adjoining mandara villas no. 12 owned by the 2nd and 3rd plaintiffs/applicants and no. 14 owned by the 1st plaintiff/applicant. The application is supported by the affidavit of the 1st plaintiff/applicant sworn on even date. She deposed that by an email dated 3rd March 2026, the defendants/respondents representatives informed them that the boundary wall on the southern edge of their properties had encroached on LR. no. 28429 and the beacons were inside their property. She deposed that they were shocked since their properties were purchased from the 1st defendant/respondent. 1. The 1st plaintiff/applicant deposed that as the original developer, the 1st defendant/respondent ought to have known the true boundaries, and that they deliberately concealed the encroachment so as to facilitate the sale of the villas at premium prices. She deposed that it was unconscionable for them to demand a unilateral realignment of a wall they originally built and profited from. 2. Further, that the threatened realignment would result in significant loss of property. She added that in the negotiations, they demanded a down payment of 25% before granting construction access which was later reduced to 5% to be held in escrow. She deposed that the defendants/respondents rejected the said proposal and on 10th March, 2026, their advocates noted the defendants/respondents subtle threat to proceed unilaterally in the absence of consensus. 3. The defendants/respondents filed their replying affidavit sworn on 9th April, 2026 by their director, Elizabeth Waiyaki. They averred that the 2nd defendant/ respondent was the registered owner of LR. no. 28429, and that in May 2025, the 2nd defendant/respondent agreed to sell the suit parcel to the 1st defendant/respondent wherein the surveyor discovered that the perimeter wall enclosing the plaintiffs/applicants properties had encroached onto the suit property by 0.0413 hectares. 4. The defendants/respondents deposed that the erroneous boundary wall was constructed by the original project manager, Suraya property group and that the 2nd defendant/respondent never sanctioned or authorized the encroachment. It was further deposed that thepurchaser refused to proceed with the sale unless the boundary wall was realigned to match the deed plan, and that the 2nd defendant/respondent’s property was charged to NCBA Bank, with a loan accruing interest at 13.77% per annum as long as the sale is stalled. 5. The defendants/respondents deposed that the plaintiffs/applicant had acted in bad faith by shifting goalposts and abusing the court process. Further, that the ex parte orders issued on 25th March, 2026 were obtained deceitfully since the plaintiffs/ applicants had failed to disclose to the court that extensive negotiations, joint surveys, and a pending sale were already in progress. 6. The 1st plaintiff/applicant filed a further affidavit sworn on 23rd April, 2026. She deposed that the lawsuit was a claim for compensation, rather than a boundary dispute. She deposed that the defendants/respondents had demanded the boundary realignment to secure their sale while deliberately ignoring their right to fair compensation for the lost land. 7. The application was canvassed through written submissions. The plaintiffs/ applicants filed their written submissions dated 13th May, 2026. The defendants/respondents filed their submissions dated 28th May, 2026. I have considered the application, the replies thereof and the written submissions filed by both parties. The issue for determination is *whether this court has jurisdiction to hear and determine the application, and if so whether the plaintiffs/ applicants are entitled to orders of temporary injunction pending the hearing and determination of the suit.* 1. The dispute between the parties involves the boundary wall adjoining their respective properties as stated in the body of the application. It is alleged that the perimeter wall enclosing the plaintiffs/applicants properties had encroached onto the 2nd defendant’s property by 0.0413 hectares. Further, that the 2nd defendant/respondent sold its property to the 1st defendant/respondent and unless the realignment is carried out, the sale will continue to loss leading to accrued interests in the bank. On the other hand, the plaintiffs/applicant decry that they risk losing significant portions of their property without due compensation. 2. Notably, the defendants/respondents contend that the matter being a boundary issue, this court lacks the requisite jurisdiction to hear and determine the same. They argued that it was the land registrar that had the mandate to determine boundary issues. It is trite law that jurisdiction is everything, and without it the court can do nothing more. This was stated in **Owners of the Motor Vessel “Lillian S” V Caltex Oil (Kenya) Ltd [1989] KLR 1**. 3. **Section 18(2)** of the **Land Registration Act** 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 states that: ***“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. **Section 19** of the **Land Registration Act,** give the land registrar the duty to fix boundaries to registered land. It provides as follows: ***“(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. From the application and the plaint, the main dispute between the parties is on realignment of the boundaries adjoining their respective parcels. Evidently so, these are private registered properties, and the first port of call to resolve the dispute is the land registrar. In the circumstance, the jurisdiction of this court has been invoked prematurely. Consequently, this court lacks the requisite jurisdiction to hear and determine the instant application and the suit. The court cannot proceed to determine the merits or otherwise of the instant application. 2. From the above, the notice of motion dated 23rd March, 2026, and the plaint dated 17th March, 2026 are hereby struck out. Each party to bear its own costs. It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY ON** **THIS 23RD DAY OF JULY, 2026.** **HON. MBOGO C.G.** **JUDGE** **23/07/2026.** ***In the presence of:*** *Mr. Benson Agunga - Court assistant* *Mr. Koech for the Plaintiffs/Applicants* *Mr. Attika for both Defendants/Respondents*