[2003] KEHC 236 (KLR)
The court found that it lacked jurisdiction to entertain the boundary dispute because the statutory process under Section 21(4) of the Registered Land Act had not been followed. The parties were required to first have the boundaries determined by the Land Registrar and District Surveyor before approaching the court....
Source-derived case information.
- Citation
- [2003] KEHC 236 (KLR)
- Parties
- Appellant: Silas Odhiambo Osodo; Respondent: Zacharia Onyando Auko
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 91 of 1999
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed; lower court suit dismissed with costs
- Legal Topics
- Registered Land, Boundary Disputes, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silas Odhiambo Osodo
Appellant
Zacharia Onyando Auko
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the court had jurisdiction to entertain a boundary dispute under the Registered Land Act before boundaries were determined by the Land Registrar and Surveyor.
- 2 Whether the suit before the lower court was competent in law.
Ratio Decidendi
The court found that it lacked jurisdiction to entertain the boundary dispute because the statutory process under Section 21(4) of the Registered Land Act had not been followed. The parties were required to first have the boundaries determined by the Land Registrar and District Surveyor before approaching the court. The lower court's order directing the Land Registrar and Surveyor to determine the boundaries was improper, as this was a step the parties themselves should have initiated. Consequently, the suit was a non-starter and should have been dismissed for contravening the law.
Court Disposition
appeal allowed; lower court suit dismissed with costs
Orders
- The appeal is allowed with costs.
- The suit in the lower court is dismissed with costs.
Full Case Text
Judgment text and source record
10 paragraphs
REPULIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL APPEAL NO.91 OF 1999
SILAS ODHIAMBO OSODO ………………………………………. APPELLANT VERSUS ZACHARIA ONYANDO AUKO …………………………………… RESPONDENT
JUDGMENT:
The Respondent was admittedly the registered co-proprietor in respect of plot Kanyada/Kotieno Katuma ”A”/1050. The other proprietor is named Trufena w/o Ouko who is his mother. It means that the respondent was adequately taken care of during the distribution of the estate of his late father.
There is an abstract in the register in this record of appeal. It shows that the size of plot 1050 aforesaid is 2 hectares. All that the respondent was entitled to do was to cause the Land Registrar and District Surveyor to determine the boundaries if he thought that the appellant had encroached upon some of the land comprised in his said title. Under s.21(4) of the Registered Land Act Cap.300 a court has no jurisdiction to entertain any action relating to a dispute as to the boundaries of registered land unless the boundaries had been determined as stipulated in the Act.
So the order which the magistrate purported to give in his judgment i.e. directing the Land Registrar and the Surveyor to determine the boundaries between plot 1050 and 1054 constituted an act which the parties themselves should have initiated if they adhered to the categorical stipulations of the law as adverted to above.
Accordingly I hold that the suit was clearly a non-starter. It should have been dismissed for already contravening the law. So I hereby allow this appeal with costs. The lower court’s suit is dismissed with costs.
Dated and delivered on 29th of July 2003. I.C.C. WAMBILYANGAH JUDGE