[2009] KEHC 2331 (KLR)
The court found that the Plaintiff's complaint was not about a boundary dispute but about trespass and unlawful possession of land. The Plaintiff alleged that the Defendant had entered the land, damaged boundaries, and uprooted crops, but did not contest the location or demarcation of the boundary itself. The...
Source-derived case information.
- Citation
- [2009] KEHC 2331 (KLR)
- Parties
- Plaintiff: Nyakwara Moruri; Defendant: Barack Opara Aluoch
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 66 of 2009
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- AO Muchelule
- Legal Topics
- Injunctions, Land Ownership, Trespass, Jurisdiction, Boundary Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Nyakwara Moruri
Plaintiff
Barack Opara Aluoch
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the court has jurisdiction to hear the suit in light of Section 21(4) of the Registered Land Act regarding boundary disputes.
- 2 Whether the Plaintiff's claim constitutes a boundary dispute or a claim of trespass and unlawful possession.
Ratio Decidendi
The court found that the Plaintiff's complaint was not about a boundary dispute but about trespass and unlawful possession of land. The Plaintiff alleged that the Defendant had entered the land, damaged boundaries, and uprooted crops, but did not contest the location or demarcation of the boundary itself. The Defendant's assertion that the land belonged to him and was fraudulently obtained by the Plaintiff did not transform the dispute into a boundary dispute. Therefore, Section 21(4) of the Registered Land Act, which bars the court's jurisdiction in boundary disputes not first determined by the Land Registrar, was not applicable. The preliminary objection was thus dismissed as...
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CIVIL SUIT 66 OF 2009
NYAKWARA MORURI ……………………………………… PLAINTIFF
VERSUS
BARACK OPARA ALUOCH ………………………...….. DEFENDANT.
RULING
In the plaint filed on 30th March 2009, the Plaintiff sought a permanent injunction restraining the Defendant by himself, his servants and/or agents from trespassing, interfering, tilling, transacting, ploughing planting, and/or in any other manner dealing with the land parcel No.KAMAGAMBO/KANYAJUOK/975 prejudicial to his proprietory interests. It was pleaded that the Plaintiff is the registered owner of this suit parcel which measures 1 hectare which he bought about 1974 and in respect of which he obtained title on 8th September 1982. He had a quiet and peaceful enjoyment and use of the property until about August, 2007 when the Defendant, without any justification or color of right, unlawfully trespassed onto it and thereby damaged its boundaries and uprooted sugarcane crop growing thereon. It is these acts that the Plaintiff complains about.
With the plaint was filed on urgent Chamber Application under Order 39 rule 1(a) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act for a temporary restraining order against the Defendant. The Plaintiff further sought a permanent injunction. A permanent injunction cannot be issued at this stage of the case, but that is something that may be taken up during the hearing of the application.
In the Supporting Affidavit, the Plaintiff deponed that the Defendant was destroying the boundary to the land and had entered the same land to plough with the intention of grabbing it, claiming that he (the Plaintiff) is a foreigner who is not supposed to own land in this area. That is why the defendant has stopped him from cultivating the land.
The Defendant filed a Notice of Preliminary Objection and raised the point that the suit was statute – barred and that leave of the court was never obtained to file it out of time. However, when it came to prosecuting the Notice, Mr. Nyambati appeared to have abandoned that point. This is because the issue he raised was that the court lacked jurisdiction to entertain the suit because it was a boundary dispute, and that under Section 21(4) of the Registered Land Act Cap 300 Law of Kenya, the Land Registrar had not fixed the boundary. Mr. Minda for the Plaintiff opposed the Objector by arguing that this was not a boundary dispute.
Section 21(4) of the Registered Land Act provides that the court has no jurisdiction to hear a matter relating to boundary dispute of registered land, unless the boundaries have first been determined by the Land Registrar(Wamutu v Kiarie (1982) KLR 480). From the pleadings by the Plaintiff, it is clear that his complaint is that the Defendant does not want him on this peace of land and that is why he has damaged the boundaries and uprooted the sugarcane crop growing on the land. He has gone ahead and taken possession of the land and he is using it as if it is his. The Plaintiff is not claiming that there is any boundary dispute between the two of them. Indeed, looking at the Statement of Defence and the Replying Affidavit by the Defendant, it is alleged that this land belongs to the Defendant but it was fraudulently obtained by the Plaintiff. This is not a boundary dispute and therefore the provisions of Section 21(4) of the Registered Land Act cannot be brought into play.
The consequence is that the Preliminary Objection is not sustained and the same is dismissed with costs.
Dated at Kisii this 25th day of May, 2009
A.O. MUCHELULE
JUDGE
25/5/09
A. O. Muchelule, J.
c/c. Mongare
Mr. Odero for the Respondent
Court: Ruling delivered in open court.
A.O. MUCHELULE
JUDGE