[2024] KEELC 7128 (KLR)

Tonkei & 2 others (Suing on their own behalf & on behalf of Inkoirero Self Help Group) v Kilusu & 2 others (Environment & Land Case E015 of 2023) [2024] KEELC 7128 (KLR) (23 September 2024) (Ruling)

Neutral citation: [2024] KEELC 7128 (KLR)

Republic of Kenya

In the Environment and Land Court at Kilgoris

Environment & Land Case E015 of 2023

EM Washe, J

September 23, 2024

Between

Ole Unua Tonkei

1st Plaintiff

Samuel Lekakeny Kinanta

2nd Plaintiff

Michael Linkato Ololabura

3rd Plaintiff

Suing on their own behalf & on behalf of Inkoirero Self Help Group

and

David Leboo Kilusu

Respondent

and

Kilgoris District Land Registrar

1st Defendant

The Hon Attorney General

2nd Defendant

Ruling

1. The 1st Defendant (hereinafter referred to as “the Applicant”) filed a Notice of Motion Application dated 05. 04. 2024 (hereinafter referred to as “the present Application”) against 1st to 3rd Plaintiff’s (hereinafter referred to as “the Respondents”) Plaint dated 28. 11. 2023 seeking for the following Orders; -a.Thatthis Honourable Court be pleased and hereby strikes out the suit herein as the same is time barred, bad in law, frivolous, vexatious and otherwise an abuse of the Court process.b.Thatthis Honourable Court be pleased and hereby strike out the suit herein as the same amounts to a boundary dispute which ought to be referred to the Land Registrar in the first instance.c.Thatcosts of this application be provided for in the main cause.

2. The grounds upon which the prayers sought hereinabove are premised include; -a.The Plaint dated 28. 11. 2023 is time barred.b.The Applicant pleaded that the dispute herein arose on the 07. 01. 2004 when the Respondents and the Applicant were both registered as the owners of the property known as LR.No.Transmara/Kimintet “D”/480. c.However, the Respondents became aware of the dispute with the Applicant in the year 2008 when he took possession and the Respondents claimed that he had encroached into property known as LR.No.Transmara/Kimintet “D”/480. d.The Respondents therefore being aggrieved by the Applicant’s occupation in their property known as LR.No.Transmata/Kimintet“D”/480 proceeded to file the suit known as Kisii High Court Case NO144 of 2008 which was subsequently withdrawn.e.The Respondents then file a second suit known as Kisii HCCC No. 274 of 2012 which was then transferred to Narokand registered as Narok ELC CASE No. 466 of 2017 before it was again transferred to Kilgoriswhere it was registered as Kilgoris ELC Case No. E32 of 2021. f.The Applicant states that in the previous two proceedings, the Respondents had pleaded that the encroachment occurred in May 2006. g.Consequently, the Applicant pleaded that the Respondents must have become aware of the Applicant’s occupation between May 2006 and/or the year 2008. h.The Applicant therefore rely on the provisions of Section 7 of the Limitation of Actions Act which provides that a claim for recovery of land should not be brought after the end of twelve years.i.Further to that, the Applicant recognised that Section 26 of the Limitation of Actions Act extends timeline within which a party can file a suit in instances where the cause of action is based on fraud.j.The Applicant pleads that based on the provision of Section 26 of the Limitation of Actions Act, the Respondents herein became aware of the dispute with the Applicant between 2006 and 2008 hence the 12 years period provided under Section 7 of the Limitation of Actions Act has since lapsed.k.In addition to the above, the Applicant also pleaded that the causes of actions against the 2nd and 3rd Defendants were time barred by virtue of Section 3(1) of the Public Authorities Limitation Act which requires any claim founded on tort against the government authorities to be filed within twelve (12) months from the accrual of the cause of action.l.In essence, the Respondent’s suit against the 2nd and 3rd Defendants herein is also time barred.m.The Applicant stated that the Respondents did not seek any leave for extension of time to institute this suit after the lapse of the statutory period provided in the statutes.n.The Applicant also pleaded that there are two separate and distinct title deeds held by the Respondents and the Applicant with varying acreages.o.This being the scenario, the present suit is one that concerns the demarcation of the boundaries between the properties held by the Respondents and the Applicant and therefore should be resolved by the 2nd Defendant at the first instance.p.Unfortunately, the Respondents failed to present the boundary dispute before the 2nd Defendant prior to instituting the present suit in contravention of Section 18 and 19 of the Land Registration Act, No. 3 of 2012. q.In conclusion therefore, the Applicant sought for the present suit to be dismissed for being pre-mature, fatally defective and an abuse of the Court process.

3. The present Application was duly served on the Respondents who opposed the same by filing a Replying Affidavit dated 05. 06. 2024 by 3rd Respondent.

4. The 3rd Respondent pleaded the following grounds in opposition of the present Application; -a.First and foremost, the Respondents lamented that the present Application is incompetent and an abuse of the Court process and is being used purely for the purposes of delaying the hearing and determination of the main suit.b.The Respondent pleaded that the present suit is not time barred as alleged by the Applicant.c.The Respondents confirmed that they are the registered owners of a property known as LR.No.Transmara/Kimintet “D”/480 measuring approximately 136. 52 Hectares.d.However, on or about 2011, a person known as Mohamed Noor Husseinentered into the Respondents property known as LR.No.Transmara/Kimintet “D”/480 based on a Lease Agreement over a portion of a property known as LR.No.Transmara/Kimintet “D”/480 with the Applicant.e.According to the Lease Agreement held by Mohamed Noor Hussein, the Respondents also discovered that there was another Title Deed for the property known as LR.No.Transmara/Kimintet “D”/480 which had been issued to the Applicant on the 12. 11. 2008. f.It was on the basis of this discovery about the second Title Deed issued on the 12. 11. 2008 that the Respondents initiated the first proceedings known as Kisii HCCC No. 274 of 2012 which were then transferred to Narokand assigned Narok ELC Case No. 466 of 2017 and again transferred to Kilgorisand registered as Kilgoris ELC Case No. E032 of 2021 that they were seeking a cancellation of the second title dated 12. 11. 2008 issued to the Applicant herein.g.The suit known as Kilgoris ELC Case No. E032 of 2021 was subsequently struck out due to a technicality on the 06. 03. 2023. h.The Respondents then filed the present suit on the 30. 11. 2023. i.The Respondents pleaded that since 2012 when the second Title Deed dated 12. 11. 2008 was discovered until 2023, the prescribed time of 12 year under the Limitation of Actions Act has not lapsed.j.Similarly, the Respondents stated that the present suit against the Applicant is based on fraud and cancellation of the second title deed relating to the property known as LR.No.Transmara/Kimintet “D”/480 issued on the 12. 11. 2008 and not a boundary dispute as alleged by the Applicants.k.In conclusion, the Respondents sought to have the present Application dismissed with costs.

5. After the Respondents filed their Replying Affidavit, the Court directed that the present Application would be canvassed by way of written submissions.

6. The Applicant then filed his submissions dated 01. 07. 2024 while the Respondents filed their submissions dated 09. 07. 2024.

7. The Court has duly carefully perused the present application, the Replying Affidavit and the submissions by the parties and the issues for determination are as follows; -Issue No. 1- isthe respondent’s plaint dated 28. 11. 2023 time barred against the applicant?Issue No.2- is the respondent’s plaint dated 28. 11. 2023 time barred against the 2nd & 3rd defendants?Issue No. 3- is the cause of action in the plaint dated 28. 11. 2023 a boundary dispute that fails within the provisions of section 18 & 19 of the land registration act, no. 3 of 2012?Issue No. 4- is the present application merited?Issue No. 5- who bears the costs of the present application?

8. The Court having duly identified the above-mentioned issues for determination, the same will now be discussed herein below as follows; -Issue No. 1- is the respondent’s plaint dated 28. 11. 2023 time barred against the applicant?

9. The first issue for determination is whether or not the Respondent’s Plaint dated 28. 11. 2023 and filed on the 30. 11. 2023 contravenes the provisions of Section 7 and 26 of the Limitation of Actions Act.

10. The provisions of Section 7 of the Limitation of Actions Act states as follows; -“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”

11. On the other hand, Section 26 of the Limitation of Actions Act provides as follows; -“Where in the case of an action for which a period of limitation is prescribed either; -a.The action is based upon the fraud of the Defendant or his agents, or of any person through whom he claims or his agent; orb.The right of action is concealed by the fraud of any such person as aforesaid; orc.The action is for a relief from the consequences of a mistake, the period of limitation does not begin to run until the Plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it.

12. The Applicant’s basis of alleging that the present suit is time barred is that the Respondents were aware of the infringement of their title as early as between 2006 and 2008.

13. The Applicants relied on the proceedings known as Kisii High Court Case No. 144 of 2008 to demonstrate that the Respondents were aware of the Applicant’s Title way back from the year 2008 and any proceedings seeking any relief against him should have been filed within 12 years from that time.

14. Similarly, the Applicant confirmed that the Respondents filed a second suit known as Kisii High Court Case No 274 of 2012 which was later assigned Narok ELCCase No. 466 of 2017 and finally Kilgoris ELC Case No. E032 of 2021.

15. In both the proceedings known as Kisii High CourtCase NO. 144 of 2008 and Kilgoris ELC Case No. E032 of 2021, there was an express admission that the Respondents became aware of the Applicants title as early as the year 2006 and/or by the year 2008.

16. Consequently, the Respondents right to institute any proceedings against the Applicant became time barred by the year 2020 and this Court therefore cannot entertain the present suit.

17. The Respondents on the other hand dispute the Applicants facts in toto.

18. The Respondents pleaded that the present suit is premised on fraud and therefore time begins running from the date the said fraud was discovered.

19. The Respondents stated that prior to the year 2011, they were not aware of any title that was issued to the Applicant.

20. The Respondents further pleaded that it was only when they came across the Lease Agreement dated 20. 04. 2011 between the Applicant and one Mohamed Noor Hussein that they discovered the other Title Deed over the property known as LR.No.Transmara/Kimintet “D”/480 which had been issued on the 12. 11. 2008.

21. The Respondents therefore submitted that at the time the present suit was filed, their claim which is founded on fraud had not become time barred.

22. As expressly provided under Section 7 of the Limitation of Actions Act, the period within which a claim or relief in land must be instituted is 12 years from the date of when the cause of action occurred.

23. This period of 12 years provided under Section 7 of the Limitation of Actions Act in instances of fraud should be calculated from the date of when the same was discovered by the person aggrieved by the alleged fraud.

24. Section 107 of the Evidence Act, Cap 80 nevertheless provides as follows; -“(1)Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

25. Section 109 of the Evidence Act, Cap 80 further provides as follows; -“The burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by law that the proof of that fact shall lie on any particular person.”

26. Clearly from the provisions of Section 107 and Section 109 of the Evidence Act, Cap 80, the burden of proof that the present suit is time barred befalls on the Applicant.

27. Turning to the Applicants grounds in support of the present Application as well as the Supporting Affidavit dated 03. 05. 2024, the Applicant seeks first to rely on the pleadings known as Kisii High Court Case No. 144 of 2008.

28. According to the Applicant, the proceedings known as Kisii High Court Case No. 144 of 2008 was filed by the Respondents who therefore were well aware of their claim of the property known as owners of LR.No.Transmara/Kimintet “D”/480.

29. Further to that, the Applicant also sought to rely on the proceedings known as Kisii High Court Case No 274 of 2012 which were ultimately known as Kilgoris ELC Case No. E032 of 2021.

30. The Applicant submitted that in both proceedings, the Respondents had pleaded that they discovered issuance of the second title of LR.No.Transmara/Kimintet “D”/480 in the name of the Applicant in the year 2006.

31. Consequently therefore, the Applicant was of the considered position that the Respondents discovered the second title issued to him between the year 2006 and 2008.

32. To begin with, the Court confirms that the Respondents herein were registered as the owners of the property known as LR.No.Transmara/Kimintet “D”/480 first on the 31. 03. 2004.

33. Thereafter, the Respondent’s title known as LR.No.Transmara/Kimintet “D”/480 issued on the 31. 03. 2004 was recalled for rectification and a second Title in their names was issued on the 24. 06. 2011.

34. During this period of time, the Respondents were the ones in possession and occupation of the property known as LR.No.Transmara/Kimintet “D”/480.

35. At the same time, the Applicant herein procured another title known as LR.No.Transmara/Kimintet “D”/480 measuring 12. 11. 2008 measuring 6. 52 Hectares.

36. The Applicant upon procuring this second Title Deed dated 12. 11. 2008 proceeded to lease the same to one Mohamed Noor Husseinon the 20. 04. 2011.

37. It was only upon the said Lessor Mohamed Noor Hussein entering the property known as LR.No.Transmara/Kimintet “D”/480 pursuit to the Title Deed issued on the 12. 11. 2008 in favour of the Applicant that the Respondents discovered the fraud which is the cause of action of the present suit.

38. The question that arises is whether it is true the Respondents pleaded that they were aware of the Applicants actions of procuring the second title issued on the 12. 11. 2008 relating to the property known as LR.No.Transmara/Kimintet “D”/480?

39. The Applicant tried to answer this question by using previous litigation proceedings names Kisii High Court Case No. 144 of 2008 and Kilgoris ELC Case No. E032 of 2021.

40. According to one of the grounds contained in the present Application, the Applicant pleaded that the Respondents were aware of the title deed issued on the 12. 11. 2008 between the period of 2006 and 2008.

41. Turning to the proceedings know as Kisii High Court Case No. 144 of 2008, the court has perused the said Plaint dated 27. 10. 2008 and takes judicial notice that the Applicant was never a party to the said proceedings at all.

42. The second fact that this Court takes judicial notice of is that the cause of action in the proceedings known as Kisii High Court Case No. 144 of 2008 was that the Defendant therein was alleged to have trespassed on the property known as LR.No.Transmara/Kimintet “D”/480 without the consent of the Respondents.

43. Consequently therefore, there was no allegation and/or admission that a second title had been issued on the property known as LR.No.Transmara/Kimintet “D”/480 to any other person and/or entity.

44. In other words, this particular case known as Kisii High Court Case No. 144 of 2008 has no bearing with the present case and/or does not confirm the Respondents knowledge of a second title to the property known as LR.No.Transmara/Kimintet “D”/480 issued on the 12. 11. 2008.

45. Moving on to the second proceeding initially known as Kisii High Court Case No. 274 of 2012 and finally Kilgoris ELC Case No. E032 of 2021, the Court has also perused the said Amended Plaint dated 30. 09. 2013.

46. Paragraph 6 of the Amended Plaint dated 30. 09. 2023 reads as follows; -“The 1st Defendant has tried fraudulently to sell part and/or portion of the Plaintiffs suit property to Mohamed Nor Hussein by falsifying the Plaintiffs original title LR.No.Transmara/Kimintet “D”/480 in his name and that he has 6. 52 hectares out of the original 136. 52 Hectares.”6B. The Plaintiff avers that the 1st Defendant used fraud to obtain a parallel title deed bearing the same title number but with different particulars of the owner and the acreage of the property.”

47. Paragraph 12 of the same Amended Plaint dated 30. 09. 2013 further provides the following; -“On or about May 2006, the 1st, 2nd and 3rd Defendants encroached, trespassed, entered and are performing their activities on the Plaintiffs land without authority and/or any colour of right”

48. The Court has again thoroughly perused the original Plaint dated 11. 07. 2012 and the Amended Plaint dated 30. 09. 2013 and takes note of the following salient causes of action contained in the proceedings known as Kisii High Court Case No. 274 of 2012 which became Kilgoris ELC Case No. E032 of 2021; -a.In the original Plaint dated 11. 07. 2012, the Respondents cause of action was encroachment, trespass and/or unlawful use of their property known as LR.No.Transmara/Kimintet “D”/480 by the Applicant who was the 1st Defendant and the other two Defendants which had been in May 2006. b.In this particular Plaint dated 11. 07. 2012, the Respondents did not plead that they were aware of any other title issued to the Applicant herein on the 12. 11. 2008. c.As regards the Amended Plaint dated 30. 11. 2013, the Respondents discovered as pleaded under Paragraph 6 that the Applicant had actually obtained another Title over the property known as LR.No.Transmara/Kimintet “D”/480 and was now leasing the same to the person known as Mohamed Noor Hussein hence the Amendments contained therein.

49. Clearly therefore, the Applicants allegation that the Respondents became aware of the second title Deed issued on the 12. 11. 2008 in favour of the Applicant before 2011 as regards the property known as LR.No.Transmara/Kimintet “D”/480 is misplaced and cannot hold any water.

50. None of the proceedings known as Kisii High Court Case No. 144 of 2008 and Kilgoris ELC Case No. E.032 of 2021 contains an admission that the Respondents had been aware of the Applicants procurement of the second title issued on the 12. 11. 2008 within the period between May 2006 and 2008.

51. In addition to the above finding by this Court, it is also important to peruse and appreciate the pleadings filed by the 2nd and 3rd Respondents against the Plaint dated 28. 11. 2023.

52. Did they raise any issue about the Respondents claim against the Applicant and/or themselves being time barred?

53. The 2nd and 3rd Defendants filed a Statement of Defence dated 18. 12. 2023 of which it specifically pleaded that the Applicant’s Title Deed for the property issued on the 12. 11. 2008 never originated from the 2nd Defendant’s of fices and are not aware of the same within the Government records.

54. The Applicants since the filing of the 2nd and 3rd Defendants Statement of Defence dated 18. 12. 2023 have never challenged this position by filing any Reply to the Statement of Defence dated 18. 12. 2023.

55. The question that then arises is from what date should this Court start calculating time under the Limitation of Actions Act when the Applicant’s title issued on the 12. 11. 2008 is said to be non-existent in the 2ndDefendant’s of fices.

56. In conclusion, this Court makes a finding that the Applicant has not proved the actual date when the Respondents became aware of the second title Deed issued on the 12. 11. 2008 to enable this Court satisfy itself that a period of 12 years has passed and hence this suit contravenes the provisions of Section 7 of the Limitation of Actions Act and is therefore time-barred.Issue No.2- is the respondent’s plaint dated 28. 11. 2023 time barred against the 2nd & 3rd defendants?

57. The second issue is whether or not the cause of action contained in the Plaint dated 28. 11. 2023 is time barred against the 2nd and 3rd Defendant.

58. The Applicant in his grounds supporting the present Application states that the causes of action against the 2nd and 3rd Defendants are time barred pursuant to the provisions of Section 3 (1) of the Public Authorities Limitation Act.

59. The Applicant pleaded that any claim based on tort against Government entities requires to be filed within twelve (12) months from the accrual of the cause of action.

60. The Respondents did not file any response to this particular allegation raised by the Applicant herein regarding the provisions of Section 3 (1) of the Public Authorities Limitation Act.

61. Section 3 (1) of the Public Authorities Limitation Act, provides as follows; -“(1)No proceedings founded on tort shall be brought against the government or a local authority after the end of twelve (12) months from the date on which the cause of action accrued”

62. To be able to tackle this issue, the Court is required to remind itself of the cause of action pleaded by the Respondents in the present suit.

63. The Respondents in Paragraph 18 of the Plaint dated 28. 11. 2023 have alleged and given the particulars of Fraud perpetuated by the Applicant in an effort to process the Title Deed dated 12. 11. 2008.

64. The Respondents further alleged and give particulars of fraud against the 2nd Defendant in view of the alleged title issued to the Applicant dated 12. 11. 2008.

65. However, in Paragraph 22, 23 and 24 of the Plaint dated 28. 11. 2023, the Respondents go further to plead as follows; -“22. The Plaintiffs are apprehensive that the title deed held by the 1st Defendant does not originate from the 2nd Defendant’s of fice. However, the 2nd Defendant is the only person to confirm the truth of the said averments.23. The Plaintiff avers that the 2nd Defendant ought to be called upon to produce the records at their disposal to confirm the lawful owner of the title to the land parcel known as LR.No.Transmara/Kimintet “D”/480. 24. According to the green card, the Land Parcel known as LR.No.Transmara/Kimintet “D”/480 measuring 136. 52 Hectares is registered in the names of the Plaintiffs.

66. In the reliefs sought by the Respondents in the Plaint dated 28. 11. 2023, the only one that is directed to the 2nd and 3rd Defendants is Prayer No. C which reads as follows; -“c.An Order directed to the District Land Registrar Kilgoris to call forth and cancel the parallel title deed held by the 1st Defendant for the land parcel known as LR.No.Transmara/Kimintet “D”/480. ”

67. The 2nd and 3rd Defendants in their Statement of Defence dated 18. 12. 2023 have actually admitted that there is no other title issued by their of fices over the property known as LR.No.Transmara/Kimintet “D”/480 save for the one issued in the name of the Respondents.

68. In other words, the 2nd and 3rd Defendants support the Respondent’s facts and reliefs sought for in the Respondent’s Plaint dated 28. 11. 2023.

69. Clearly, the cause of action in the Plaint dated 28. 11. 2023 is the verification of the second Title Deed dated 12. 11. 2008 held by the Applicant as regards the property known as LR.No.Transmara/Kimintet “D”/480 which the 2nd and 3rd Defendants support the Respondents allegation that it is forged and/or fraudulently procured.

70. This Court therefore makes a finding that the cause of action contained in the Plaint dated 28. 11. 2023 is squarely against the Applicant’s title issued on the 12. 11. 2008 and in view of the fact that the 2nd and 3rd Defendants have pleaded that it did not originate from their of fices, then it is upon the Applicant to revert this allegation to the satisfaction of the Trial Court.Issue No. 3- is the cause of action in the plaint dated 28. 11. 2023 a boundary dispute that fails within the provisions of section 18 & 19 of the land registration act, no. 3 of 2012?

71. The third issue for determination is whether or not the cause of action in the Plaint dated 28. 11. 2023 is one which is described as boundary dispute under Section 18 and 19 of the Land Registration Act, N.3 of 2012.

72. Section 18 of the Land Registration Act, No. 3 of 2012 and in particular Sub-Section 2 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.”

73. According to the Applicant, the cause of action in the Respondents Plaint is one that rises a boundary issue and therefore should be handled by the 2nd Respondent at the first instance.

74. The Respondents are of a contrary view on the basis that the cause of action in the present suit is the legality and/or validity of the Applicant’s title deed known as LR.No.Transmara/Kimintet “D”/480.

75. The 2nd and 3rd Defendants through the Statement of Defence dated 18. 12. 2023 similarly hold the view that the cause of action filed by the Respondents to determine the legality and validity of the Applicant’s title deed dated 12. 11. 2008 regarding the property known as LR.No.Transmara/Kimintet “D”/480.

76. In other words, the Respondents as well as the 2nd and 3rd Defendants despite the allegation that the cause of action contained in the Plaint dated 28. 11. 2023 is one of a boundary dispute.

77. To begin with, the cause of action contained in the Plaint dated 28. 11. 2023 seeks to challenge the validity and/or existence of the Applicants title deed dated 12. 11. 2008 as regards the property known as LR.No.Transmara/Kimintet “D”/480.

78. Based on the pleadings, it is clear that the property known as LR.No.Transmara /Kimintet “D”/480 has two title deeds issued initially on the 09. 01. 2004 and re-issued on the 24. 06. 2011 belonging to the Respondents and the second one dated 12. 11. 2008 held by the Applicant.

79. The 2nd and 3rd Defendants in the Statement of Defence dispute the issuance of the Applicant’s title deed dated 12. 11. 2008 as the same did not originate from the of fice of the 2nd Defendant.

80. This being the scenario, the Applicant’s title deed issued on the 12. 11. 2008 requires to be verified and/or confirmed to be legitimate and properly issued before the issue relating boundary disputes can be adjudicated.

81. The provisions of Section 18 of the Land Registration Act, No. 3 of 2012 are only available to parties that have legitimate and lawfully recognised Certificates of Titles.

82. Unfortunately, in this particular application, the 2nd and 3rd Defendants recognise only the title deed issued on the 24. 06. 2011 to the Respondents as the lawful and recognised Certificate of Title for the property known as LR.No.Transmara/Kimintet “D”/480 and not the Applicant’s title issued on the 12. 11. 2008 over the same property.

83. In essence, according to the 2nd Defendant, the Applicant’s title deed dated 12. 11. 2008 cannot be relied upon to resolve any boundary dispute as the same does not have supporting documents within the 2nd Defendant’s of fice to facilitate any boundary dispute resolution.

84. This Court therefore is of the considered option that the cause of action contained in the Plaint dated 28. 11. 2023 does not constitute a boundary dispute as envisaged in Section 18 and 19 of the Land Registration Act, No. 3 of 2012 capable of being referred to the 2nd Defendant for resolution.Issue No. 4- is the present application merited?

85. Based on the determination of Issue No. 1 to 3 hereinabove, this Court makes a finding that the present Application is not merited.Issue No. 5- who bears the costs of the present application?

86. The last issue is who should bear the costs of the present Application.

87. Costs usually follow the outcome and in the present Application, the Applicant is condemned to pay costs.

Conclusion 88. In conclusion therefore, the finding of the Court as regards the present Application is as follows; -A.The notice of motion dated 05. 04. 2024 be and is hereby dismissed.B.The applicant shall bear the costs of this application.

DATED, SIGNED & DELIVERED VIRTUALLY IN KILGORIS ELC COURT ON 23. 09. 2024. EMMANUEL.M.WASHEJUDGEIn the presence of :Court Assistant:Mr NgenoPlaintiff: Mr. Ngeno h/b NyaundiDefendant: Mr. Ondigi