https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5064

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT HOMA BAY** **ELC CASE. E012 OF 2026** PAUL OCHIENG OCHOLA....................................................PLAINTIFF **VERSUS** KENNEDY OTIENO ODIRA....................................... 1ST DEFENDANT QUINTER ANYANGO MAENDE.................................2ND DEFENDANT HELLEN ANYANGO MENYA......................................3RD DEFENDANT BENARD ONYANGO OMWADHO..............................4TH DEFENDANT LILIAN GORO...........................................................5TH DEFENDANT **RULING** 1. Before this Court is the question of jurisdiction raised orally by counsel for the Counsel of the 2nd Defendant on the 8th July 2026 when the matter came up for mention for pre-trial. Counsel contended that this Court lacks jurisdiction to entertain the suit on the ground that the dispute before the Court is essentially a boundary dispute, the determination of which falls within the statutory mandate of the Land Registrar under the Land Registration Act. 2. The Plaintiff instituted this suit seeking the following reliefs: - 3. A permanent injunction restraining the Defendants, whether by themselves, their agents or servants, from entering upon, cultivating, interfering with or in any other manner trespassing upon the Plaintiff's parcel of land. 4. An order of eviction against the Defendants. An order directing demolition of any structures erected on the suit property. 5. General damages for trespass. 6. Costs of the suit and interest. 7. The plaint further pleads that the Defendants have unlawfully encroached onto the Plaintiff's land. More significantly, at 8. paragraph 11 of the plaint, the Plaintiff avers that upon reporting the dispute to the Land Registrar, Homa Bay County, the Land 9. Registrar summoned the Defendants with a view to resolving the boundary dispute but that the Defendants jointly and severally ignored the summons. It is further pleaded that the Land Registrar consequently advised the Plaintiff to seek the intervention of the Court. 10. Counsel for the 2nd Defendant submitted that from the pleadings themselves, it is evident that the dispute concerns the location of the common boundary between adjoining parcels of land. Counsel argued that by virtue of Sections 18 and 19 of the Land Registration Act, the Land Registrar has the primary jurisdiction to ascertain and determine disputed boundaries before the Court can assume jurisdiction. It was therefore urged that the suit is premature and ought to be struck out. 11. In response, counsel for the Plaintiff submitted that the suit is not against the Land Registrar but against the Defendants who deliberately refused to honour the Land Registrar's summons. Counsel argued that the Plaintiff approached the Court after exhausting the administrative process and upon the advice of the Land Registrar. It was further submitted that the Plaintiff merely seeks the Court's intervention to compel compliance with the Land Registrar's directives and to restrain the Defendants from continued trespass. **Issue for Determination** 1. The sole issue for determination is whether this Court has jurisdiction to entertain the suit in view of the provisions of Sections 18 and 19 of the Land Registration Act. **Analysis and Determination** 1. Jurisdiction is everything. Without jurisdiction, a court has no power to take even one further step. This principle was authoritatively stated by the Court of Appeal in Owners of the 2. **Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd** where it was held that jurisdiction is the foundation upon which judicial authority rests. 3. Section 18(2) of the Land Registration Act 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. Section 19 of the Act grants the Land Registrar the statutory mandate to ascertain and fix disputed boundaries after notifying affected proprietors, conducting a hearing and, where necessary, carrying out a survey and placing boundary marks. 2. The rationale behind these provisions is that technical questions relating to the ascertainment and fixing of boundaries fall within the expertise of the Land Registrar, while the jurisdiction of the Court arises after the statutory process has been undertaken or where the Court is called upon to review or enforce rights flowing from a completed determination. 3. The jurisdiction of this Court flows from Art 162(2) (b) of the Constitution which is read together with the provisions of section 13(2) of the ELC Act. The latter provides as follows; **“In exercise of its jurisdiction under Article 162 (2) (b) of the Constitution, the Court shall have power to hear and determine disputes-** 1. **relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;** 2. **relating to compulsory acquisition of land;** 3. **relating to land administration and management;** 4. **relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and** 5. **any other dispute relating to environment and land** 6. For avoidance of doubt Section 13 of the Environment and Land Act in my view does not oust the jurisdiction of the court to determine boundaries. However, when it comes to general boundaries section 18(2) of the Land Registration Act provides in mandatory terms that the dispute should be submitted to the Land Registrar. 7. Under the Land Registration Act Cap 300 (now repealed) Section 21(4) deprived this Court the power to entertain 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. Section 18(2), the Land Registration Act, 2012 (LRA), similarly 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”.** 1. Under 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. 1. (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. 2. From the above provisions of the law, it is manifestly clear that the above section gives the mandate to the Land Registrar to resolve boundary disputes of land with general boundaries. Registry Index Map (RIM) only indicates approximate boundaries and the approximate situation on the ground. Even if this Court was to hear and determine this matter it will still require the input of the Land Registrar. 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. 3. Although the Plaintiff has framed the suit as one for injunction, eviction, demolition and damages for trespass, the Court is obligated to look beyond the reliefs sought and ascertain the real substance of the dispute. A court cannot assume jurisdiction merely because a party has clothed a boundary dispute in the language of trespass or injunction. 4. From the pleadings, the Plaintiff expressly pleads that the dispute was referred to the Land Registrar for resolution as a boundary dispute. The Plaintiff further avers that the Defendants ignored the Land Registrar's summons, thereby preventing the Land Registrar from resolving the dispute. This Court notes that on 8th July 2026, Counsel for the Plaintiff indicated that he needs a report from the land registrar. 5. The Plaintiff's own pleadings therefore demonstrate that the process contemplated under Sections 18 and 19 of the Land Registration Act was commenced but was never concluded. There is no pleading or evidence that the Land Registrar ever visited the land, heard the parties, determined the position of the common boundary or rendered a formal decision capable of implementation. 6. The Court appreciates the Plaintiff's argument that the Defendants frustrated the administrative process by refusing to attend before the Land Registrar. Such conduct, if true, cannot be condoned. However, the refusal by parties to honour the Land Registrar's summons does not by itself confer jurisdiction upon the Court where Parliament has expressly provided that the Land Registrar must first determine the disputed boundary. 7. The Land Registration Act provides the Land Registrar with sufficient statutory authority to summon parties, conduct proceedings and determine disputed boundaries. Where parties fail to cooperate, the Registrar is not thereby divested of his statutory mandate. Equally, where appropriate circumstances exist, a party may invoke the Court's supervisory jurisdiction through appropriate judicial review proceedings or seek orders compelling the performance of a statutory duty. What cannot be done is to invite the Court to determine a dispute whose determination the law has, in the first instance, reserved for the Land Registrar. 1. In the present case, the Plaintiff seeks orders of eviction, demolition and injunction on the basis that the Defendants have encroached upon the Plaintiff's land. Whether there has indeed been an encroachment necessarily depends upon first establishing the true location of the common bound. 2. The plaintiff therefore ought to have given the Land Registrar the chance to address the boundary complaint raised in the pleadings herein in line with Section 18 and 19 of the Land Registration Act. Hethe Plaintiff/Applicant jumped the gun and took a trojan horse by harbouring the view that this court is seized of jurisdiction to hear and determine this matter. 24. In the circumstances, I am in agreement with the defendant’s submission that this court lacks jurisdiction to entertain the suit, and unless and until that exercise is undertaken by the Land Registrar, the Court cannot determine whether the alleged acts amount to trespass. 1. Consequently, the Court finds that the dispute before it is fundamentally a boundary dispute whose resolution must first be undertaken by the Land Registrar in accordance with Sections 18 and 19 of the Land Registration Act. **DISPOSITION** 26.Accordingly, the preliminary objection succeeds. The suit is hereby struck out for want of jurisdiction as it has been prematurely filed before the statutory boundary determination process has been completed. * 1. However, to ensure that the Registrar performs his role I direct that he forthwith proceeds to the parcels in dispute for purposes of establishing the boundaries and whether there is encroachment. Both parties can share the costs or in the alternative the plaintiff can meet the same so as to fast track the exercise 1. As the dispute has been struck out on a preliminary issue and in order not to prejudice the parties' substantive rights arising from failure by the Registrar to carry out the exercise, each party shall bear its own costs. 2. File closed. **It is so ordered.** **RULING DATED AND DELIVERED AT HOMA BAY VIA TEAMS PLATFORM THIS 31ST DAY OF JULY 2026.** In the Presence of; * 1. Osoro for the Plaintiff- Present. 2. Oyala for the G.S Okoth for the defendant – Present 3. 1st, 3rd, 4th and 5th Defendants – Absent 4. Court Assistant – Ms. Awino JUSTICE J.W WANYONYI -JUDGE