https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5195

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC APPEAL NUMBER E0023 OF 2025** SAMWEL KAMUNCHULUL THULA ……………………..…. APPELLANT VERSUS JAMES BIMITHIA LINGENE ………………………….…1ST RESPONDENT LAND REGISTRAR – TIGANIA EAST/WEST…………..2ND RESPONDENT THE HON. ATTORNEY GENERAL……………………...3RD RESPONDENT ***[Being an appeal from the Ruling and orders of Hon. E M Ayuka [PM] in MCELC MISC. NO. E043 OF 2025 at Tigania delivered on 08.05.2025]*** **JUDGMENT** 1. The subject appeal brings to the fore, the issue as to whether a miscellaneous application, like the one which was filed before Tigania Chief Magistrate’s court; and which has precipitated the appeal, can be deployed for purposes of procuring and obtaining substantive reliefs or otherwise. 2. The importance of deploying the correct mechanism in approaching the jurisdiction of the court has been the subject of various decisions. In the case of **Scope Telematics International Sales Limited v Stoic Company Limited & another [2017] KECA 545 (KLR)**, the Court of appeal addressed the question and stated as hereunder: **“The *manner of initiating a suit cannot be termed as a mere case of technicality. It is the basis of jurisdiction. Obviously, in overlooking a statutory imperative and the above authorities, the learned Judge cannot be said to have exercised his discretion properly. There can be no other interpretation of Rule 2. The application should have been anchored on a suit. It was not about what prejudice the appellant or and 2nd respondent would suffer or what purpose the suit would have served. Discretion cannot be used to override a mandatory statutory provision. For these reasons, we are in agreement with the submissions of the appellant that the application was fatally and incurably defective.”*** 1. Before venturing forward to interrogate the issues in controversy, it is important to put the facts into context. The facts attendant to the subject matter are rather straight forward. 2. The facts are: The 1st respondent approached the chief magistrate’s court *vide* miscellaneous application; the 1st respondent posited that he is the registered owner of LR No. North Athinga/Athanja/4582 [herein after referred to as the suit property]; the suit property arose from the adjudication and demarcation process; the suit property is duly captured at the foot a registry index map; the suit property is also shown to be measuring 0.15 Ha; however, the ground occupied by the suit property is bigger than the acreage on the title; a survey report was generated on the 10.01.2023; the survey report revealed the acreage to be 0.30Ha; the revealed acreage exceeded the titled acreage; and the 1st respondent was desirous to have the acreage and the map amended. 3. Additionally, the 1st respondent posited thus: The suit property was birthed by the adjudication and demarcation process; the adjudicated area was 0.15Ha; nevertheless, the 1st respondent sought amendment of the acreage; and the chief magistrate’s court was called upon to intervene. 4. The 1st respondent [who was the applicant] impleaded the Land Registrar and the Honourable Attorney General. The said parties, who are now the 2nd and 3rd respondents did not oppose the application. Instructively, learned counsel Ms. Miranda, Senior State Counsel, conceded the application. 5. Arising from the foregoing, the learned trial magistrate [Hon. E Ayuka – Principal Magistrate] proceeded to and allowed the application. The learned magistrate made the following orders: “***That an order be and is hereby issued directing, empowering and or authorizing the land registrar, Tigania East/West to amend and rectify the acreage and the registry index map on land parcel number Meru North/Athinga/Athanja/4582 to reflect the position on the ground pursuant to the surveyors report dated the 10.01.2023, which is that the surveyed ground computes 0.30ha as opposed to 0.15ha.”*** 1. Pursuant to the said orders, it appears that the acreage of the suit property, were adjusted and the adjustment impacted upon and affected the parcel of land belonging to the appellant. The appellant herein was aggrieved and thus approached the Chief Magistrate’s Court *vide* Application dated the 26.06.2025. The said application was heard and subsequently dismissed. 2. The net effect of the dismissal of the application dated the 26.06.2025, was that the original orders, which were made on the 08.05.2025, remained in situ. In addition, the adjustments arising out of the miscellaneous orders, remained and continued to impact upon the appellant. 3. Aggrieved, the appellant sought and obtained leave of the court to file an appeal out of time. The appellant thereafter approached the court *vide* the memorandum of appeal dated the 27.02.2026. The grounds at the foot of the Memorandum of appeal are: 4. ***That the learned trial magistrate erred in law and in facts by failing to appreciate that a miscellaneous, Application generally must be accompanied or supported by a substantive suit if it seeks to determine rights over, title or final orders as relates to ownership of land and acreage of land, hence arriving at the wrong decision.*** 5. ***That the learned trial magistrate erred in law and facts by failing to appreciate that there was another suit pending in court with regard to the suit land it being Tigania ELC Suit No. E006 of 2025 which would have been rendered nugatory by issuance of the said orders.*** 6. ***That the learned trial magistrate erred in law in fact by issuing orders that affected the appellant’s land LR No. Meru North Athinga/Athanja/4271 without giving him an opportunity to be heard.*** 7. ***That the learned trial magistrate erred in law and fact by considering what was not relevant and failing to consider what relevant facts and thus came up with the wrong findings on facts and the law.*** 8. ***That the learned trial magistrate ruling and order were against the facts and the law applicable and therefore bad in law.*** 9. The appeal came up for directions on the 15.07.2026, whereupon learned counsel for the appellant intimated to the court that same had filed and served the record of appeal. In addition, learned counsel posited that the record of appeal was complete. To this end, counsel sought directions as pertains to the disposal of the appeal. Moreover, counsel proposed to have the appeal canvassed by way of written submissions. 10. With the concurrence of learned counsel for the respondents, the court proceeded to and issued directions. The directions were: The appeal shall be heard before one judge sitting at Meru for one day; the appeal shall be canvassed by way of written submissions; the appellant shall file and serve written submissions within 7 days from the date of the directions; the respondents shall file and serve written submissions within 7 days from the date of service; and the appellant shall be at liberty to file and serve rejoinder submissions [if any] within 3 days of service. 11. The appellant filed written submissions dated the 22.07.2026 and wherein the appellant has raised four key [4] issues. The issues are: Whether a miscellaneous application can determine proprietary rights over land; whether the court disregarded the pending suit contrary to the doctrine of *sub judice;* whether the First respondent failed to make full disclosure of material facts; and whether the amendments of the registry index map occasioned irreparable prejudice or otherwise. 12. Regarding the first issue, learned counsel for the appellant has submitted that a miscellaneous application, like the one which was filed by the 1st respondent, cannot be used to accrue substantive reliefs or orders, before a court of law. In addition, it has been submitted that a miscellaneous application can not be deployed to affect property right[s] of a party, more so, where the third party has not been joined. 13. Furthermore, learned counsel for the appellant has submitted that a miscellaneous application can only be used in addressing procedural matters, but not to affect rights under **Article 40 of the Constitution, 2010**. Learned counsel has thereafter submitted that the orders which were issued at the foot of the miscellaneous application, did not only enhance the acreage of the suit property, but also culminated into eviction of the appellant. 1. Secondly, it has been submitted that the 1st respondent concealed and neglected to disclose to the court that there was already, a civil suit between the parties, touching on and concerning the boundary dispute between the suit property and the parcel of land belonging to the appellant. In this regard, learned counsel has referenced Tigania CMELC No. E006 of 2025. 2. Be that as it may, it has been submitted that the 1st respondent failed to disclose the existence of the said suit and thereafter, proceeded to and obtained the offensive orders, on the basis of non-disclosure. It has been contended that the orders which were obtained by the 1st respondent, are not only tainted with illegality, but were also obtained by fraud. 3. Thirdly, it has been submitted that insofar as there was a suit pending before the same court, the proceedings, which birthed the offensive orders, were barred by the doctrine of *sub judice.* Counsel has submitted that the learned trial magistrate ought not to have entertained and adjudicated upon the miscellaneous application, on the face of an existing suit. The provisions of ***Section 6 of the Civil procedure Act, Chapter 21 Laws of Kenya***, have thereafter been invoked and referenced. 4. To buttress the submissions as pertains to the doctrine of *sub judice*, learned counsel for the appellant, has cited the decision of the supreme court in the case of **Kenya National Commission on Human Rights versus the Attorney General; independent Electoral and Boundaries Commission and 16 others [Interested parties] [2020] eKLR**. 5. The fourth issue that has been argued by learned counsel for the appellant relates to the effect and implications of the amendment of the registry index map. It has been submitted that the amendment of the registry index map has gone ahead to alienate a portion of the land belonging to the appellant, even though the appellant, was not a party to the miscellaneous application. 1. Furthermore, it has been submitted that following the offensive amendment of the registry index map and the enhancement of the acreage of the suit property, the 1st respondent has since proceeded to undertake subdivision of the suit property; and to create new titles, whose effect is to eat onto portions of the appellant’s land. 2. Additionally, it has been submitted that the offensive amendment of the registry index map and the consequential increase/enhancement of the acreage of the suit property, have precipitated the eviction of the appellant. Moreover, it has been submitted that the appellant’s permanent structures, are now on the verge of demolition. 3. Premised on the foregoing, learned counsel for the appellant has submitted that the appeal before the court, is meritorious and thus same ought to be allowed. The court has been invited to allow the appeal; set aside the impugned ruling; nullify the offensive amendments; and to strike out the miscellaneous application, which birthed the offensive orders. 4. The 1st respondent filed written submissions dated the 24.07.2026 and wherein same has highlighted three [3] key issues. The issues are: The appellate herein only got leave to appeal the orders of 04.12.2025 and not the ruling of 08.05.2025; the appeal before the court is incompetent insofar as no leave was obtained beforehand; and the orders of 08.05.2025, were made long before the appellant became a party and thus the appellant is divested of the capacity to prefer an appeal. 5. Regarding the first issue, learned counsel for the 1st respondent has submitted that the appellant herein, filed an application seeking to be joined as a party in the miscellaneous application and thereafter, same [appellant] was joined into the said proceedings on the 09.10.2025. It has been submitted that the appellant herein only became a party in the said proceedings from the said date. 6. Furthermore, it has been submitted that insofar as the appellant was not a party to the suit/proceedings in the lower court, when the offensive orders were made, the appellant cannot therefore file the subject appeal. For good measure, it has been submitted that only a party to the proceedings, at the material time, can file/mount an appeal. 7. The next issue that has been submitted upon is to the effect that the appeal before the court is incompetent, insofar as no leave was sought or obtained to appeal against the orders made on the 08.05.2025. Simply put, learned counsel for the 1st respondent has submitted that the appeal before hand is premature; misconceived; and legally untenable. 8. Flowing from the foregoing, learned counsel for the 1st respondent has implored the court to find that the appeal is bereft of merits and that same ought to be dismissed. In addition, counsel has invited the court to vacate the interim orders which were issued in favour of the appellant. Furthermore, the court has been invited to award compensation to the 1st respondent as pertains to the wasted materials, which are said, to have been on the site. 9. The 2nd and 3rd respondents filed written submissions dated the 21.07.2026 and wherein same [the Honourable Attorney General] has highlighted two key issues. The issues are: Whether the appellant has locus standi to mount the appeal; and whether the orders sought can be granted by this court or otherwise. 10. With regard to the first issue, it has been submitted that the appellant herein, approached the lower court vide an application dated the 28.07.2025 and wherein same sought various reliefs. In particular, it has been submitted that the appellant sought to be joined into the proceedings as an interested party. 11. Moreover, it has been submitted that having been joined as an interested party, the appellant herein did not become a substantive party in the suit vide miscellaneous application. In this regard, learned counsel for the 2nd and 3rd respondent has submitted that an interested party cannot file an appeal, in an endeavor to impeach the orders, which were issued between the principal parties. 12. To buttress the foregoing submissions, learned counsel for the 2nd and 3rd respondents has cited the case of **Senate and 3 others versus Speaker of the National Assembly and 10 others [2025] KESC 11[KLR].** 13. Secondly, learned counsel for the 2nd and 3rd respondents has submitted that the orders, which were issued on the 08.05.2025, did not touch on or concern the appellant. Insofar as the said orders did not touch on the appellant, it has been submitted that the appellant herein, cannot now be heard to complain against the said orders. 14. Further, and in addition, it has been submitted that the appellant herein, is seeking to introduce and to canvass new issues, which were not captured *vide* the miscellaneous application. Besides, it has been argued that the appellant cannot be allowed to raise and canvass fresh issues, which are at variance with the issues that had been canvassed by the primary parties. 15. To support the foregoing position, learned counsel for the 2nd and 3rd respondent, has cited and relied upon the holding in the case of **Mary Kitsao Ngowa and 36 others versus Krystalline Limited [2015] KECA 286 KLR**. 16. In the circumstances, learned counsel for the 2nd and 3rd respondents, has invited the court to find and hold that the issues raised vide the subject appeal, were never presented before the trial court. To this end, the court has been invited to find that the orders sought in the memorandum of appeal, cannot be granted. 17. In short, the court has been implored to dismiss the appeal and to award cost to the 2nd and 3rd respondents. 18. Having reviewed the record of appeal; the grounds of appeal; the ruling sought to be impeached; and upon consideration of the written submissions filed by and on behalf of the respective parties; and bearing in mind the relevant principles, three [3] issues crystalize for determination. The issues are: Whether the issue of the competence of the appeal can be raised at this juncture or otherwise; whether the miscellaneous application which was filed in the lower court and which anchored the impugned ruling was valid; and whether the court [lower court] was seized of the jurisdiction to grant the impugned orders or otherwise. 19. Before venturing to address the thematic issues that have been isolated in the preceding paragraph, it is important to highlight that what is before me is a first Appeal. By virtue of being a first Appeal, this court is mandated to undertake a fresh and exhaustive scrutiny, review, and analysis of the totality of evidence tendered before the court of first instance. The court is obligated to review the evidence and determine whether the finding and conclusion arrived at by the trial magistrate accord with the evidence on record and the legal principles. 20. The court is seized of the authority and jurisdiction to arrive at an independent conclusion and to depart from the findings of the trial court. However, it is established that the appellate court can only depart from the factual finding and conclusion of the trial court where it is demonstrated; that the conclusions were based on no evidence; the conclusions are perverse to the evidence on record; the findings are based on misapprehension of the evidence and law; and that there is a demonstrable error of principle, which vitiates the findings of the Trial Court. 21. Suffice it to state that, barring the foregoing, the first appellate court is enjoined to defer to the findings and conclusions of the trial court. Notably, the jurisdiction of the first appellate court to interfere with the findings/conclusions of the trial court is circumscribed. The jurisdiction is not at large. It is a jurisdiction that cannot be exercised for the mere asking. In addition, it cannot be invoked at will. **Section 78 of the Civil Procedure Act, Chapter 21 Laws of Kenya,** regulates its exercise. 22. The jurisdictional remit of the first appellate court, while undertaking its mandate as pertains to the first Appeal, has been the subject of various court decisions. In the case of **Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR).** The Court of Appeal expounded on the scope of the jurisdiction. 23. The court stated thus: *“46. We also wish to be guided by the reasoning of this court in the case of Mwana Sokoni versus Kenya Business Limited (1985) KLR 931 page 934,934 thus:-“Although this court on Appeal will not lightly differ from the Judge at first instance on a finding of fact, it is undeniable that we have the power to examine and re-evaluate the evidence on a first Appeal if this should become necessary. As was said by the House of Lords in Sottos Shipping versus Sauviet Sohold, The Times, March 16, 1983.“It is uncertain whether their Lordships should have reached the same conclusion on the evidence, but it is important that, sitting in the appellate court they should be over mindful of the advantages enjoyed of the trial Judge who saw and heard the witnesses and was in a comparably better position than the Court of Appeal to assess the significance of what was said, how it was said, and equally impotent what was not said” Again in Peters versus Sunday Post Limited (1958) EA424, a decision of the Court of Appeal for Eastern Africa, Sir Kenneth O’ Conner, P said at page 429: “It is a strong thing for an appellate court to differ from the finding on a question of fact of the Judge who tried the case and who has had the advantage of seeing and hearing and the witnesses.”* 1. Recently, the Court of Appeal revisited the jurisdictional remit in the case of **Kenya Urban Roads Authority & another v Belgo Holdings Limited [2025] KECA 764 (KLR).** The Court highlighted the principle in the following manner: *“We have considered the Appeal, and this being a first Appeal, we are under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching our own conclusions in the matter. In carrying out this duty, we have to remember that we had no opportunity of seeing and hearing the witnesses who testified during the trial and to make an allowance for the same. We have also to remember that it is a big thing to overturn the findings of a trial court which has had the singular opportunity of reaching its conclusions based on a combination of the evidence adduced and observation by the court of the demeanour of witnesses. In a nutshell, a first appellate court must of necessity proceed with caution in deciding whether or not to interfere with the findings of a trial court, but of course, where such findings are not supported by the evidence on record or where they are founded on a misapprehension of the law, the axe must fall on the impugned judgment. This position is anchored in section 78 of the*[*Civil Procedure Act*](https://new.kenyalaw.org/akn/ke/act/1924/3)*, which requires a first appellate court to re-evaluate, reassess, and reanalyse the extracts of the record and draw its own conclusions. These provisions have been underscored in numerous decisions of the Superior Courts among them Peters v Sunday Post Limited [1958] EA 424, where the predecessor to this Court expressed itself as follows: “Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to the courts of Appeal) of having the witnesses before him and observing the manner in which their evidence is given…Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question…It not infrequently happens that a decision either way may seem equally open, and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the appellate court becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgment of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong****.” [see also the decision in the case of* County Government of Bungoma & 2 others v JOO & 2 others [2024] KECA 1377 (KLR)** *and* **County Government of Narok v Ntutu & 2 others [2026] KECA 880 (KLR) –** [paragraphs 56 and 57 thereof]” 1. Bearing in mind the principles enunciated in the decisions [supra], I am now well poised to revert to the subject matter and to address the thematic issues highlighted elsewhere hereinbefore. I shall deal with the issues sequentially. The first issue relates to whether the respondents herein, can now challenge the competence of the appeal and contend that the memorandum of appeal relates to the orders of 08.05.2025, and yet no leave was [sic] sought to appeal against the said orders. 2. It is important to underscore that upon the filing of the subject appeal, same came up for admission. Moreover, it is worthy to point out that the appeal was admitted to hearing in terms of Section 79B of the Civil Procedure Act, Chapter 21 Laws of Kenya, in the presence of the Counsel for all the parties. Notably, the admission of the appeal was undertaken on the 15.07.2026. 1. I am alive to the fact that the admission of an appeal for hearing is to be undertaken by the judge in chambers. In addition, there is no gainsaying that the admission of the appeal, is a preliminary judicial duty. I could very well have dealt with the admission of the appeal in the summary manner. However, the proceedings in respect of the subject appeal shows that the admission was done on the same date of the directions. 2. Fast forward, the subject appeal was also subjected to directions in terms of **order 42 rule 13 of the Civil Procedure Rules, 2010**. The directions were taken and issued in the presence of all the advocates. Suffice it to state that none of the advocates appearing for the respondents, raised or canvassed any jurisdictional question, pertaining to the competence of the appeal. Instructively, a respondent seeking to challenge the competence of an appeal, on whatever issue, is obligated, nay, enjoined, to raise and canvass, such an issue before the giving of directions. 3. **Order 42 Rule 13 of the Civil Procedure Rules, 2010** are apt. The provisions stipulate thus: ***“13 [1] Upon notice to the parties delivered not less than twenty-one days after the date of service of the memorandum of appeal the registrar shall cause the appeal to be listed for the giving of directions by a judge in chambers.*** ***[2] Any objection to the jurisdiction of the appellate court shall be raised before the judge before he gives directions under this rule.*** ***[3] The judge in chambers may give directions concerning the appeal generally and in particular directions as to the manner in which the evidence and exhibits presented to the court below shall be put before the appellate court and as to the typing of any record or part thereof and any exhibits or other necessary documents and the payment of the costs of such typing whether in advance or otherwise.*** 1. My reading and understanding **order 42 rule 13 [2] of the Civil Procedure Rules** [Supra] drives me to the conclusion that any respondent, the current respondents not excepted, is obligated to generate the jurisdictional question touching on and concerning the competence of the appeal, before the giving of the directions. Where the respondents fail to canvass the jurisdictional question in line with Rule 13 [2] of the Civil Procedure Rules, the window closes and the Respondent cannot be heard to revisit the issue during the plenary hearing. 2. In respect of the instant matter, the learned counsel for the respondents participated in the taking of the directions without raising any objection. The connotation is to the effect that the respondents, had no question or issue, with the competence of the appeal. To this end, the respondents’ right to impugn the competence of the appeal, is water under the bridge. 3. Consequently, I am afraid that the arguments, which have been canvassed and agitated on behalf of the respondents’ are spent. The respondents slept on their rights. It is now too late to revisit the issue of the competence of the appeal, considering that Rule 13 [2] [supra], deploys the word “shall”. 4. In the case of **Macharia Mwangi & Njeru Advocates v Ecobank Limited [2023] KECA 1501 (KLR),** the Court of Appeal interpreted the word “shall” to mean mandatory. 5. The court stated thus: **“*The definition given in***[***Black's Law Dictionary***](https://www.amazon.com/Blacks-Law-Dictionary-Standard-Ninth/dp/0314199497)***, 9th Edition, for the word “may” includes: "to be permitted to, to be a possibility, or confers discretion to admit; and is in contradistinction to the use of the word “shall” which postulates a mandatory requirement. For purposes of clarity, I do not think the use of the word May is elusive or ambiguous. I take note that Paragraph 7, (a) & (b), use the word “shall”, and I am in agreement with Ngenye, JA, that in using ‘may’ and ‘shall’ in the same provision, the Legislature intended to convey a different meaning. Indeed, it cannot be said that it was the intention of the Legislature to have parties enter into a general agreement for every non-contentious debt collection matter; otherwise, it would have used the word “shall” as opposed to “may”. I have no hesitation in concluding that the word ‘may’ can only connote a discretionary mandate****.”* 1. My short answer to issue number one is to the effect that the competence of the appeal, does not fall for determination at this juncture. The respondents had the opportunity to raise the issue. Sadly, the respondents allowed the opportunity to pass by. It is now too late for the respondents to revert to the pre-Rule 13 [2] situation. 2. I now wish to move to the second issue. The second issue touches on and concerns whether a miscellaneous application, like the one which was filed before the chief magistrate’s court at Tigania, can be deployed for purposes of seeking the substantive orders including: Adjustment of the acreage of land; and amendment of the registry index map [RIM]. 3. I beg to state that the manner of approaching the jurisdiction of the court is statutorily provided for and circumscribed. **Section 19 of the Civil Procedure Act, Chapter 21 Laws of Kenya** stipulates thus: *“ Institution of suits* *Every suit shall be instituted in such manner as may be prescribed by rules.”* 1. The Rules committee promulgated **Order 3 Rule 1 of the Civil Procedure Rules, 2010,** to guide the filing of the suit. The provisions stipulate thus: ***“ Commencement of suit and case track allocation [Order 3, rule 1]*** 1. *Every suit shall be instituted by presenting a plaint to the Court, or in such other manner as may be prescribed.* 2. *The claim shall indicate at the heading the choice of track; namely “small claims”, “fast track” or “multi-track”.”* 3. The 1st respondent could only commence the proceedings before the chief magistrate’s court at Tigania vide Miscellaneous application, only and only if, the civil procedure rules prescribed the usage of such applications. However, the provisions of Order 3 Rule 1 [supra] are succinct. The suit for impugning acreage of land or rectification of registry index map, are not expressly provided for. In this regard, it then means that were a party seeks such orders, like the ones that were being sought by the 1st respondent, then same was enjoined to file a plaint. 4. For the avoidance of doubt, the provisions of **section 19 of the Civil Procedure Act; and Order 3 Rule 1 of the Civil Procedure Rules**, are crystal clear. There is no ambiguity. The 1st respondent could not manufacture his own procedure. 5. Back to the importance of the procedure deployed to approach the jurisdiction of the court. I do state that the procedure that is deployed in approaching the seat of justice is a substantive issue and not a procedural one. It does go to the root of the jurisdiction. It is not curable by the invocation or application of **Article 159 [2] [d] of the Constitution, 2010**. 6. In the case of **Scope Telematics International Sales Limited v Stoic Company Limited & another [2017] KECA 545 (KLR),** the court underscored the forgoing position. The court of appeal stated thus**:** ***“The manner of initiating a suit cannot be termed as a mere case of technicality. It is the basis of jurisdiction. Obviously, in overlooking a statutory imperative and the above authorities, the learned Judge cannot be said to have exercised his discretion properly. There can be no other interpretation of Rule 2. The application should have been anchored on a suit. It was not about what prejudice the appellant or and 2nd respondent would suffer or what purpose the suit would have served. Discretion cannot be used to override a mandatory statutory provision. For these reasons, we are in agreement with the submissions of the appellant that the application was fatally and incurably defective.”*** 1. The foregoing holding suffices. I do wish to say no more. The miscellaneous application, which was deployed by the 1st respondent was invalid. It was incapable of originating proceedings before the Chief Magistrate’s court. In any event, there is no gainsaying that no proceedings/suit, ever existed before the Chief Magistrate’s Court, for purposes of issuance of [sic] any order. 1. Before concluding on this issue, it is apposite to reference the *ratio* in the case of **Republic v Chengo & 2 others [2017] KESC 15 (KLR).** The supreme court reaffirmed the legal position thus: ***“When an act is void, it is a nullity ab initio . It cannot found any legal proceedings and Lord Denning’s decision in the Privy Council case of***[***Benjamin Leonard Macfoy United Africa Company Limited***](http://www.nigeria-law.org/LawReporting/1961/Benjamin%20Leonard%20MacFoy%20v%20United%20Africa%20Company%20Ltd.htm)***(UK)[1962] AC 152 succinctly makes this point. He stated thus:“Court has discretion in matters that are voidable not to proceedings that are a nullity for those are automatically void and a person affected by them can apply to have them set aside ex debito justitiae in the inherent jurisdiction of the Court ...”And;“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. … And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”*** 1. Next is the issue of the jurisdiction of the lower court to grant the orders directing the amendment and rectification of the acreage and registry index map [RIM] in respect of the suit property. Put differently, the question is whether the court was seized of jurisdiction to grant the impugned orders? 1. It is common ground that jurisdiction must be donated to the court, either by the constitution or by the statute. Moreover, court[s] of law are creatures of the statutes. The courts can only exercise the jurisdiction granted. This position was illuminated in the case of **Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR). The apex court stated thus:** ***“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”*** 1. Did the chief magistrate’s court possess the jurisdiction to grant the impugned orders? The process/procedure for amendment of the acreage of land and rectification of the registry index map [RIM], where apposite, is elaborately provided for in the **Land Registration Act, 2012**. It is a jurisdiction that belongs to the land registrar exclusively, albeit upon undertaking the requisite processes. 2. The process underpinning an amendment of the registry index map is to be found in **sections 16 and 19 of the Land Registration Act, 2012 [2016].** The sections stipulate thus: **“16. Power to alter boundary lines and to prepare new editions** **(1) The office or authority responsible for the survey of land may rectify the line or position of any boundary shown on the cadastral map based on an approved subdivision plan, approved combination plan or any other approved plan necessitating the alteration of the boundary, in the prescribed form, and in accordance with any law relating to subdivision of land that is for the time being in force** **.(2) whenever the boundary of a parcel is altered on the cadastral map, the parcel number shall be cancelled and the parcel shall be given a new number.** **(3) The office or authority responsible for the survey of land may prepare new editions of the cadastral map or any part thereof, and may omit from the new map any matter that it considers obsolete.** **(4) Any rectification to the cadastral map in accordance with this section shall be notified to the Registrar by the submission of the rectified cadastral map and all the approvals that necessitated the amendments.** **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. To my mind, where a person, the 1st respondent not excepted, has an issue with the boundaries, same is obligated to lodge a complaint with the land registrar and the land registrar, shall upon receipt of such complaints activate the statutory processes. Instructively, the land registrar is enjoined to issue summons to all the persons, who are likely to be affected, by the dispute. 2. The appellant herein appears to be one such person, who was bound to be affected by the amendment of the acreage of the suit property and the rectification of the registry index map. Quite clearly, the appellant was entitled to a hearing. 3. My understanding of **sections 16 and 19 of the Land Registration Act, 2012,** drives me to the conclusion that the chief magistrate courts was not seized of the jurisdiction. It could not entertain [sic] the miscellaneous application. It could not issue the impugned orders. The orders were ipso facto, illegal. 4. In the case of **Kiarie Wamutu v Mungai Kiarie & another [1982] KECA 52 (KLR),** the court of appeal considered a situation where a boundary dispute was lodged before a court and thereafter the court referred the matter to the land registrar 5. The court addressed the legal position thus: ***“With respect on the previous occasion the judge erred in making the order referring the matter to Land Authorities for he too had no jurisdiction to hear and determine the suit because of the provisions of section 21(4) of the Act which deprives the court of jurisdiction in cases involving boundary disputes under the Act. Even if the defendants had* not applied to strike *out the plaint the court was bound to take note of the provisions of sub-section (4) and do so of its own motion.”*** 1. Additionally, the court [Per Law JA] stated thus; ***“ I agree with it, for the reasons stated by him, and concur with the order proposed. The Registrar must carry out the mandatory duty imposed on him by law and demarcate the disputed boundary, under section 21(2) of the Registered Land Act.”*** 1. The bottom line is to the effect that the Land Registrar, must be allowed to do his work without being induced or directed by the court. In any event, the land registrar is enjoined to abide by and comply with the prescription of the law, including serving the summons on the parties, who are likely to be affected by any adjustments. 2. I beg to terminate the judgment. However, it would not be apposite to do so without citing the decision of the supreme court in the case of **In the Matter of the Interim Independent Electoral Commission (Applicant) [2011] KESC 1 (KLR).** 3. The apex court discussed the import of jurisdiction by stating thus: ***“29. assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14):“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step.”*** ***30.The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.”*** 1. *In a nutshell*, it is my finding that the chief magistrate’s court was devoid of jurisdiction to entertain the impugned proceedings and to grant the offensive orders. I repeat, the orders made on the 08.05.2025, were a *nullity ab intio.* The same were illegal. **Conclusion:** 1. The Appellant had sought to convince the court that the miscellaneous application, which was deployed by the 1st respondent, was a nullity. Having reviewed the relevant provisions of the law, I am obliged to and do agree. 2. Furthermore, there was also the question of jurisdiction. Time and time again, it has been stated that jurisdiction is everything. It has also been emphasized that where a court of law, is divested of jurisdiction, then the court ought to down its tools. It was incumbent upon the chief magistrate at Tigania, to down its tools and to defer to the Land Registrar. 3. Consequently, and in the premises, there is no gain saying that the impugned proceedings and the resultant orders, were vitiated. To this end, a basis has been laid to warrant intervention. Simply put, the appeal is meritorious. It deserves to be allowed. **Final orders:** 1. Flowing from the analysis in the body of the judgment, the final orders that commend themselves to the court are: 2. ***The Appeal be and is hereby Allowed.*** 3. ***The Ruling of the Chief Magistrate dated and delivered on the 08.05.2025 [RIM] be and is hereby set aside.*** 4. ***The amendment of the registry index map [RIM] and the enhancement of the acreage of LR No. Meru North/ Athinga/Athanja/4582, be and is hereby cancelled.*** 5. ***The sub-divisions of LR No. Meru North/ Athinga/Athanja/4582, arising from the impugned amendment be and are hereby revoked.*** 6. ***The register of LR No. Meru North/ Athinga/Athanja/4582, be and is hereby reverted to the status quo ante, namely; the status before the offensive adjustments.*** 7. ***The Miscellaneous application dated the 10.03.2024 be and is hereby struck out.*** 8. ***The Proceedings anchored on the miscellaneous application number Tigania CMELC Misc. E043 of 2025 be and are hereby declared null and void.*** 9. ***Costs of the appeal be and are hereby awarded to the Appellant.*** 10. ***The Appellant shall also have costs of the proceedings before the Lower Court.*** 11. ***The Costs in terms of clause [viii] and [ix] above shall be agreed upon and in default be taxed in the conventional manner.*** 12. It is so ordered. **DATED, SIGNED AND DELIVERED AT MERU ON 04TH DAY OF AUGUST, 2026.** **OGUTTU MBOYA; FCIArb; CPM [MTI-EA].** **JUDGE.** In the presence of: Court Assistant: Zakayo Mr. Thiruaine for the Appellant Mr. J Ondieki for the 1st Respondent Ms. Miranda, Senior State Counsel for the 2nd and 3rd Respondents