https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2966

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ELDORET** **ELCL NO. E023 OF 2024** **THE REGISTERED TRUSTEES REFORMED** **CHURCH OF EAST AFRICA …………... PLAINTIFF/RESPONDENT** **VERSUS** **MINISTRY OF ROADS, TRANSPORT &** **PUBLIC WORKS, UASIN GISHU ..….1ST DEFENDANT/APPLICANT** **KENYA URBAN ROADS AUTHORITY ………………2ND DEFENDANT** **RULING:** 1. The 1st Defendant herein raised an objection against the plaintiff’s suit vide a Notice of Preliminary Objection dated 4th August, 2025, seeking to have the plaintiff’s suit struck out with costs for lack/want of jurisdiction on the following grounds: - 1. **This honourable court lacks jurisdiction to hear and determine the plaintiff’s suit on alleged boundary interference of its land parcels ELDORET MUNICIPALITY BLOCK 13/117 and ELDORET MUNICIPALITY BLOCK 13/118 as it contravenes the provisions of sections 18 and 19 of the Land Registration Act, No. 3 of 2012.** 2. **The plaintiff’s case contravenes provisions of sections 2, 28 and 29 of the Land Registration Act, No. 3 of 2012 on the provided overriding interests of easements and rights of way.** 3. **The deponent in the plaintiff’s pleadings has neither attached a Board Resolution nor any relevant document to prove his authority to institute this suit on behalf of the Plaintiff.** 4. **The plaintiff’s case amounts to an abuse of the court process and ought to be struck out with costs to the 1st defendant.** 2. On 16.02.2026, this court issued directions that the Preliminary Objection be canvassed by way of written submissions. The 1st Defendant filed his submissions dated 06.03.2026 while the plaintiff filed their submissions dated 25.03.2026 together with authorities which I have read and duly considered in arriving at my decision as hereunder. 3. On 23.03.2026, the 2nd defendant’s counsel, Ms. Odeyo, informed the court that since they are supporting the preliminary objection, they would not be filing any submissions thereto. **1ST Defendant Submissions;** 1. Counsel for the 1st defendant restated the applicable law on preliminary objections as was expressed in the cases of ***Mukhisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 and Oraro vs Mbaja [2005] 1 KLR141***, which emphasized the need for a preliminary objection to be premised on a point of law and must not be blurred by any factual details which may call for adducing of evidence or the exercise of a court’s discretion. 2. Counsel maintained that the instant Preliminary objection has been raised in pure points of law, touching on the jurisdiction of this court to litigate on the issues raised by the plaintiff and the capacity to sue. 3. He outlined the provisions of sections 18 and 19 of the Land Registration Act, No. 3 of 2012. Counsel submitted that the provisions of section 18(2) of the Act deprives the court of the power to entertain any action or proceedings relating to boundary disputes of a registered land. 4. He maintained that the terms of the section are to the effect that the said disputes must be determined by the Land Registrar and it is only after the said determination by the land registrar that parties are at liberty to move to court to challenge the said decision. 5. He relied on the case of the ***Estate Sonrisa Ltd & Anor vs Samuel Kamau Macharia & 2 Others [2020] KECA 734 (KLR)*** in support of this ground. 6. It was his contention that the plaintiff’s case touches on the encroachment of its boundaries to create passway roads, which fall under the ambits of section 18 and 19 of the Land Registration Act. He thus submitted that the suit is premature and urged the court to find that it is not vested with the requisite jurisdiction to entertain the suit as filed. 7. He reiterated the importance of jurisdiction and submitted that where a clear procedure for redress of any particular grievance is described by the Constitution or an Act of Parliament, the said procedure must be strictly followed. On this regard, they relied on the case of ***Speaker of National Assembly vs Karume [1992] KECA 42 (KLR)***. 8. As regards the deponent’s authority to institute the suit on behalf of the plaintiff, it was submitted that no resolution and/or authority has been attached thereto to prove his powers to do so. It was his contention that it is trite law that an authority thereof must be attached to prove/show capacity to sue. 9. With regards to the provisions of section 28(1) of the Land Registration Act, No. 3 of 2012, counsel stated that all registered land are subject to rights of way, which is equivalent to an easement as an overriding interest. They relied on the definition of an easement/ outlined by the Court of Appeal as a convenience exercised by a landowner over the land of a neighbor without participation in the profit of the other land. 10. He maintained that the access roads on the plaintiff’s land parcels were created as a result of the provisions in section 28(1) of the Land Registration Act and urged the court to find as such. 11. In conclusion, counsel for the 1st defendant/applicant urged the court to allow the Preliminary objection and to dismiss the plaintiff’s suit with costs to the 1st defendant. **Plaintiff’s Submissions;** 1. The plaintiff submitted on all the grounds as outlined in the preliminary objection; whether the same meets the threshold of a proper Preliminary objection as outlined in the case of ***Mukhisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) E.A 696*** and the merits of the grounds thereof. 2. It was their submission that a proper Preliminary objection must be raised on a pure point of law and must not be blurred with factual details which are contested or such facts that would require to be proven through evidence or warrant the exercise of the court’s discretion. 3. Counsel thus submitted that grounds (1) and (2) in the Preliminary objection cannot be sustained as pure points of law. It was his contention that the plaintiff’s case does not involve a boundary dispute as alleged but the same is on the issue of trespass. 4. Further, it is his claim that issues pertaining to rights of way and/or easement and/or access roads to the plaintiff’s property as outlined in ground 2 of the Preliminary objection are questions of fact that have to be analyzed before the court. 5. On the third ground touching on the issue of a Board of Resolution or any relevant document to prove that the deponent in the verifying affidavit has the authority to institute the present proceeding, it was submitted that the failure to file a resolution is not fatal to warrant the dismissal of the entire case. Counsel relied on the case of ***Leo Investments Limited vs Trident Insurance Company Ltd (2014) eKLR*** which was reiterated in the case of ***Bakamoyo Limited vs Nathoo & 3 Others ELC 43 of 2021 (2024) KEELC 7207 KLR***. 6. In conclusion, counsel submitted that the Preliminary objection lacks merit and the same should be dismissed with costs. **Analysis and Determination:** 1. From the foregoing, it is my considered opinion that the main issue arising for determination is whether this court is vested with the requisite jurisdiction to entertain the plaintiff’s suit and consequently whether the preliminary objection raised is merited. 2. The law on what constitutes a preliminary objection was outlined in the case of ***Mukhisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd 1969 E.A. 696***; where the Court defined Preliminary Objection as follows; ***“...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.*** 1. The Supreme Court in the case of ***Aviation & Allied Workers Union vs Kenya Airways Ltd & 3 Others, Application No. 50 of 2014 [2015] eKLR*** reiterated this position and held as follows:- ***“Thus, a preliminary objection may only be raised on a pure question of law. To discern such a point of law, the court has to be satisfied that there is no proper contest to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.”*** 1. Having outlined what constitutes a proper preliminary objection, I will now proceed to determine the each of the 4 grounds raised in the Notice of Preliminary Objection in determining whether the same are merited or not. **Ground 1 – Want of Jurisdiction on account of the provisions of sections 18 and 19 of the Land Registration Act;** 1. The first ground in the Preliminary obejction, seeks to challenge the jurisdiction of this court to hear and determine the plaintiff’s suit on account of sections 18 and 19 of the Land Registration Act. 2. It is the 1st Defendant’s contention that the plaintiff’s suit being premised on an alleged boundary interference, the same should be determined by the land registrar in the first instance as provided under Section 18(2) of the Act before the same is referred to court. 3. The plaintiff on his part maintained that its suit is mainly premised on the issue of trespass and the same is not a boundary dispute as alleged by 1st defendant. 4. In addition, it was submitted that the ground one as outlined is not a pure point of law and the same raises questions of fact which stand to be tested by rules of evidence. 5. Section 18 and 19 of the Land Registration Act provides as follows:- ***“18. Boundaries*** ***(1) Except where, in accordance with section 20, it is noted in the register that the boundaries of a parcel have been fixed, the cadastral map and any filed plan shall be deemed to indicate the approximate boundaries and the approximate situation only of the parcel.*** ***(2) 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.*** ***(3) Except where, it is noted in the register that the boundaries of a parcel have been fixed, the Registrar may, in any proceedings concerning the parcel, receive such evidence as to its boundaries and situation as may be necessary: Provided that where all the boundaries are defined under section 19(3), the determination of the position of any uncertain boundary shall be done as stipulated in the Survey Act, (Cap. 299).*** ***19. Fixed boundaries*** ***(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. Sections 18 and 19 of the Land Registration Act outlined above, provides the relevant procedure on the fixing of boundaries. It is common ground that section 18(2) of the Act ousts the jurisdiction of this court in the first instance to entertain suits relating to a dispute as to boundaries of a registered land unless the said boundary has been determined as provided. 2. The question that therefore follows is whether the plaintiff’s suit relates to a dispute as to boundaries in order to determine whether this court is vested with the requisite jurisdiction to entertain the suit or not. 3. In determining the same, I have carefully and critically looked at the plaint dated 25.04.2024. The Plaintiff’s cause of action is contained at paragraphs 4, 5, 6 and 7 of the plaint, which I have carefully looked at as well as the orders sought therein. 4. Consequently, it is my considered opinion that the plaintiff’s suit is majorly premised on the issue of trespass and/or encroachment into its parcels of land kwown as Eldoret Municiplaity Block 13/ Nos. 117 and 118 allegedly by the defendants’ acts of constructing passway roads through the said parcels of land. 5. The survey exercise undertaken by the County Surveyor on the plaintiff’s instructions is in my view aimed at proving their allegations on trespass and does not necessarily mean that what is at the center of the dispute between the plaintiff and the defendants is a boundary related dispute. 6. In view of the foregoing, this court finds that the plaintiff’s suit does not contravene the provisions of sections 18 and 19 of the Land Registration Act as alleged and the jurisdiction of this court is not ousted on the same account as alleged. 7. To this end therefore, this court finds that ground 1 of the Preliminary objection is not merited. **Ground 2 – Whether the plaintiff’s suit contravenes the provisions of sections 2,28 and 29 of the Land Registration Act on overriding interests;** 1. In the second ground of the Preliminary objection, the 1st Defendant contends that the plaintiff’s suit contravenes the provisions of section 2,28 and 29 of the Land Registration Act, which provides for overriding interests including easement and rights of ways. 2. Sections 2, 28 and 29 of the Land Registration Act provides as follows: - ***28. Overriding interests 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 their being noted on the register— (a) spousal rights over matrimonial property;*** ***(b) trusts including customary trusts;*** ***(c) rights of way, rights of water and profits subsisting at the time of first registration under this Act;*** ***(d) natural rights of light, air, water and support; (e) rights of compulsory acquisition, resumption, entry, search and user conferred by any other written law;*** ***(f) leases or agreements for leases for a term not exceeding two years, periodic tenancies and indeterminate tenancies;*** ***(g) charges for unpaid rates and other funds which, without reference to registration under this Act, are expressly declared by any written law to be a charge upon land;*** ***(h) rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or by prescription;*** ***(i) electric supply lines, telephone and telegraph lines or poles, pipelines, aqueducts, canals, weirs and dams erected, constructed or laid in pursuance or by virtue of any power conferred by any written law; and*** ***(j) any other rights provided under any written law.*** ***29. Actual notice*** ***Every proprietor, at the time of acquiring any land, lease or charge, shall be deemed to have had notice of every entry in the register relating to the land, lease or charge and subsisting at the time of acquisition.*** 1. Before delving into the merits of this ground, it is important to first ascertain and/or establish whether ground 2 as raised is a pure point of law and meets the test set out in the **Mukhisa Biscuit Manufacturing Case (Supra)** or not. 2. It is settled law that a Preliminary Objection need not be marred with factual issues which stand to be tested by rules of evidence and may call for the exercise of this court’s discretion in determining the same. 3. From a cursory look at the provisions outlined in ground 2, it is clear that the same are marred with factual issues which may call for the need to adduce evidence by each party in support of their claims and the exercise of judicial discretion in determining whether the 1st defendant’s actions of constructing the passway road is an easement or not. 4. Thus, guided by the Supreme Court decision above this court finds that the ground 2 of the Preliminary objection contained contested facts and which may stand to be tested by way of evidence at the substantive hearing of the suit and further involve the exercise of this court’s discretion in determining the same. The same is therefore not merited. 5. This is also the finding in regards to ground 4 of the Preliminary objection, this court finds that determining whether the plaintiff’s suit is an abuse of the court process or not is not a pure point of law and there exists issues of fact as outlined in the **Mukhisa Biscuit case (supra)**. **Ground 3 – Failure by the deponent in the plaintiff’s pleadings to attach the Resolution by the Board granting him the authority to institute the present suit on behalf of the plaintiff;** 1. Under ground 3, the 1st defendant is seeking the dismissal of the plaintiff’s suit on the ground that the deponent in the pleadings, who swore the verifying affidavit, did not annex/attach a resolution by the Board granting him the authority to plead and institute the pleadings on behalf of the plaintiff. 2. It was the 1st Defendant’s submission that the failure to annex the relevant document, whether in the form of the Board Resolution or any, was fatal and the plaintiff’s suit therefore ought to be struck out on the said ground. 3. The plaintiff on the other hand submitted and maintained that such failure is not fatal to warrant the striking out of the entire suit. 4. The question that arises is whether the ground 3 raises a pure point of law and whether the failure to attach the resolution of the board granting the deponent in the plaintiff’s pleadings the authority to plead is fatal to warrant the striking out of the suit. 5. It is common ground that the plaintiff herein, The Registered Trustees Reformed Church of East Africa, is a body corporate under the Trustees Act with a separate legal entity. Therefore, the decision to institute legal proceedings should and/or may be made by the Resolution of the Board of Trustees, which in essence authorizes the filing of the suit and grants the deponent therein the authority and/or powers to plead on behalf of the Trustee and not in his individual capacity. 6. However, there is no law in Kenya specifically providing for the production of resolution of the board and making it a mandatory prerequisite before the filing of a suit or swearing of an affidavit by a deponent in a suit instituted by a body corporate. 7. Justice M. Sila (as he then was) in the case of ***Said Bin Seif Properties (2016) Limited v Hamumi (Appeal 13 of 2020) [2022] KEELC 3116 (KLR)* (5 May 2022) (Judgment)** while addressing a similar issue on the need of a resolution of the board before the filing of a suit or swearing of an affidavit by a deponent in a suit by a body corporate held as follows: - ***“I am in agreement with the above. There is no law that says that an advocate acting on behalf of a corporation must file an authority or resolution of the company together with the Memorandum of Appearance. There is also no law that says that before an affidavit can be filed on behalf of a corporation, then the deponent must first produce a Board resolution that he is so authorised to swear the affidavit. The same goes for a witness. I reiterate that it is the company which knows who it has authorized, and I think that unless there is material produced to demonstrate prima facie that the deponent cannot be so authorised, I think courts should be slow to doubt the authority stated by the deponent in his affidavit or testimony. But if the court, in its discretion, is persuaded that such authority needs to be demonstrated then opportunity should be given for this to be provided. To strike out pleadings of a corporation on a preliminary objection such as that which was taken in this case is in my opinion very wrong.”*** (See also the decision in the case of ***Fubeco China Fushun v Naiposha Company Limited & 11 Others (2014) eKLR*** and Court of Appeal in the case of ***Arthi Highway Developers Limited v West End Butchery Limited & Others, Nairobi Civil Appeal No.246 of 2013 (2015) eKLR***). 1. Thus, guided by the decision, it is the finding of this court that such failure is not fatal to the plaintiff’s suit to warrant the striking out of the suit at a preliminary stage. The plaintiff is however directed to regularize its position and file all the necessary document before the close of pleadings. 2. Consequently, this court finds that ground 3 in the Preliminary objection is not merited. **Costs:** 1. It is a well settled principle that costs follow the event unless the court directs otherwise. 2. In this case, having held that the notice of Preliminary Objection is not merited I find that the plaintiff is entitled to costs. **Conclusion:** 1. In view of the foregoing, it is the finding of this court that the Notice of Preliminary Objection dated 4th August, 2025 is **not merited** and the same is hereby dismissed with costs to the plaintiff. 2. It is so ordered. **DATED**, **SIGNED** and **DELIVERED** at **ELDORET** this **14th** day of **MAY, 2026.** **HON. C. K. YANO** **JUDGE** **Ruling delivered in the virtual presence of: -** Mrs. Khayo for the Plaintiff. Mr. Kwame for the 2nd Defendant. No appearance for the 1st Defendant. Court Assistant – Laban