1. The Plaintiff in this matter approached the court by a Plaint dated October 4, 2013, seeking orders that:
a) An order for the surveyor of the disputed boundary bordering the two plots, numbers 161B and 102, to determine the boundary by the government surveyors.
b) Costs of the suit
c) Any other relief that this Honourable Court may deem fit and just to grant.
2. The Plaintiff and the 1st Defendant entered into a consent on October 21, 2021, which alleged that the encroachment area of 0.464 Ha by the Defendant be deemed to be the property of the Plaintiff.
3. Affected by the said consent order, the Interested Party herein filed an application to be enjoined as an interested party and to set aside the said consent orders, which application was allowed.
4. Thereafter, the Interested Party filed the Preliminary Objection (PO) dated July 29, 2025, as follows:
a) This Honorable Court lacks the jurisdiction to entertain the suit by dint of Sections 18 and 19 of the Land Registration Act.
5. The parties were then directed to file submissions on the PO. I appreciate the parties' submissions in this matter, as they aided the Court in reaching its verdict.
6. After reviewing the materials and submissions before me, I frame the following issues for the Court's determination: whether the PO is sustainable, whether the Court lacks jurisdiction under Sections 18 and 19 of the Land Registration Act, and who bears costs.
The Mukisa Biscuits Test.
7. The Interested Party/Applicant submits that this Honorable Court lacks jurisdiction to entertain the suit under Sections 18 and 19 of the Land Registration Act. Sections 18 and 19 of the Land Registration Act provide as follows; the Land Registrar has primary jurisdiction over boundary disputes, and appeals therefrom lie to the ELC.
8. On the other hand, the Plaintiff contends that the dispute between the defendants and the Plaintiff is not about ownership of the two separate plots, but about the boundary, since the two plots are adjacent to one another and are separate as Plot No. 161B and 102. The Plaintiff is the owner of Plot No. 161B, whereas the defendants are the owners of Plot No. 102. The interested party herein bought land from one of the defendants, and the land sold was to be carved out of Plot No. 102, not 161B. When the defendants sold to the interested party a plot to be carved from Plot No. 102, they did not engage a surveyor to mark the boundaries of the two parcels of land and to set proper beacons to avoid interfering with Plot No. 161B. From the survey report filed in court on 8th August, 2014, it was clear that there was an encroachment by the defendants when they sold land to the interested party, and the defendants agreed with the Plaintiff, resulting in the consent entered in this honorable court as a proper way of settling disputes as neighbors. The interested party was later informed of the survey report on the encroachment, and the interested party's mother agreed to settle her part, which was done. It was the interested party who was to review the scenarios among the neighbors, as the defendants sold land to the interested party, and part of the land sold extended to Plot No. 161B, the property of the Plaintiff.
9. A PO was described in the case of Mukisa Biscuits Manufacturing Co. Ltd. v West End Distributors Ltd. (1969) EA 696 to mean:
“So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
10. Further, Sir Charles Newbold, JA, stated that:
“A Preliminary Objection 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 had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does not nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop”.
11. What is raised here is a jurisdictional issue, namely that this Court has no jurisdiction to hear this matter as a Court of 1st instance, and that the jurisdiction to deal with boundary disputes rests with the Land Registrar by dint of Sections 18 and 19 of the Land Registration Act.
12. I agree that the point raised is purely a point of law and therefore the PO is appropriate.
13. A look at the Plaint will reveal that the parties' claims relate to a survey of the disputed boundary between the two plots, Nos. 161B and 102, to determine the boundary by government surveyors.
14. Sections 18 and 19 of the Land Registration Act provide 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.”
15. The sections explicitly state that the Land Registrar initially addresses issues solely related to boundaries. This Court had the opportunity to clarify this position in Shari v Daniel & 4 Others [2025] KEELC 5021 (KLR):
“Based on the preceding discussion regarding the boundary-fixing procedure, the process may be initiated either by the Land Registrar or by the individual seeking resolution of a boundary dispute through the Registrar. Failure to adhere to the procedures outlined for determining and establishing boundaries renders the court, pursuant to section 18(2) of the Land Registration Act, incapable of entertaining any actions or proceedings related to boundary disputes involving the specific parcels of land in question. Additionally, under Regulation 40(6) of the Land Registration (General) Regulations, 2017, the court's jurisdiction concerning boundary disputes is appellate. It is the court’s view that such jurisdiction cannot be invoked at the initial stage as contemplated by the plaintiff.”
16. Consequently, insofar as this matter is purely a boundary dispute within the Land Registrar's jurisdiction, the PO dated July 29, 2025, is hereby upheld, and the entire suit is struck out with costs to the Interested Party/Applicant.
Dated, signed, and electronically delivered in Nyeri on this 29th day of April, 2026.
E. K. MAKORI
JUDGE
In the presence of:
Ms. Kinyakanga for the Interested Party/Applicant
Kendi: Court Assistant
In the Absence of:
Mr. Atancha for the Plaintiff
a) An order for the surveyor of the disputed boundary bordering the two plots, numbers 161B and 102, to determine the boundary by the government surveyors.
b) Costs of the suit
c) Any other relief that this Honourable Court may deem fit and just to grant.
2. The Plaintiff and the 1st Defendant entered into a consent on October 21, 2021, which alleged that the encroachment area of 0.464 Ha by the Defendant be deemed to be the property of the Plaintiff.
3. Affected by the said consent order, the Interested Party herein filed an application to be enjoined as an interested party and to set aside the said consent orders, which application was allowed.
4. Thereafter, the Interested Party filed the Preliminary Objection (PO) dated July 29, 2025, as follows:
a) This Honorable Court lacks the jurisdiction to entertain the suit by dint of Sections 18 and 19 of the Land Registration Act.
5. The parties were then directed to file submissions on the PO. I appreciate the parties' submissions in this matter, as they aided the Court in reaching its verdict.
6. After reviewing the materials and submissions before me, I frame the following issues for the Court's determination: whether the PO is sustainable, whether the Court lacks jurisdiction under Sections 18 and 19 of the Land Registration Act, and who bears costs.
The Mukisa Biscuits Test.
7. The Interested Party/Applicant submits that this Honorable Court lacks jurisdiction to entertain the suit under Sections 18 and 19 of the Land Registration Act. Sections 18 and 19 of the Land Registration Act provide as follows; the Land Registrar has primary jurisdiction over boundary disputes, and appeals therefrom lie to the ELC.
8. On the other hand, the Plaintiff contends that the dispute between the defendants and the Plaintiff is not about ownership of the two separate plots, but about the boundary, since the two plots are adjacent to one another and are separate as Plot No. 161B and 102. The Plaintiff is the owner of Plot No. 161B, whereas the defendants are the owners of Plot No. 102. The interested party herein bought land from one of the defendants, and the land sold was to be carved out of Plot No. 102, not 161B. When the defendants sold to the interested party a plot to be carved from Plot No. 102, they did not engage a surveyor to mark the boundaries of the two parcels of land and to set proper beacons to avoid interfering with Plot No. 161B. From the survey report filed in court on 8th August, 2014, it was clear that there was an encroachment by the defendants when they sold land to the interested party, and the defendants agreed with the Plaintiff, resulting in the consent entered in this honorable court as a proper way of settling disputes as neighbors. The interested party was later informed of the survey report on the encroachment, and the interested party's mother agreed to settle her part, which was done. It was the interested party who was to review the scenarios among the neighbors, as the defendants sold land to the interested party, and part of the land sold extended to Plot No. 161B, the property of the Plaintiff.
9. A PO was described in the case of Mukisa Biscuits Manufacturing Co. Ltd. v West End Distributors Ltd. (1969) EA 696 to mean:
“So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
10. Further, Sir Charles Newbold, JA, stated that:
“A Preliminary Objection 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 had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does not nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop”.
11. What is raised here is a jurisdictional issue, namely that this Court has no jurisdiction to hear this matter as a Court of 1st instance, and that the jurisdiction to deal with boundary disputes rests with the Land Registrar by dint of Sections 18 and 19 of the Land Registration Act.
12. I agree that the point raised is purely a point of law and therefore the PO is appropriate.
13. A look at the Plaint will reveal that the parties' claims relate to a survey of the disputed boundary between the two plots, Nos. 161B and 102, to determine the boundary by government surveyors.
14. Sections 18 and 19 of the Land Registration Act provide 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.”
15. The sections explicitly state that the Land Registrar initially addresses issues solely related to boundaries. This Court had the opportunity to clarify this position in Shari v Daniel & 4 Others [2025] KEELC 5021 (KLR):
“Based on the preceding discussion regarding the boundary-fixing procedure, the process may be initiated either by the Land Registrar or by the individual seeking resolution of a boundary dispute through the Registrar. Failure to adhere to the procedures outlined for determining and establishing boundaries renders the court, pursuant to section 18(2) of the Land Registration Act, incapable of entertaining any actions or proceedings related to boundary disputes involving the specific parcels of land in question. Additionally, under Regulation 40(6) of the Land Registration (General) Regulations, 2017, the court's jurisdiction concerning boundary disputes is appellate. It is the court’s view that such jurisdiction cannot be invoked at the initial stage as contemplated by the plaintiff.”
16. Consequently, insofar as this matter is purely a boundary dispute within the Land Registrar's jurisdiction, the PO dated July 29, 2025, is hereby upheld, and the entire suit is struck out with costs to the Interested Party/Applicant.
Dated, signed, and electronically delivered in Nyeri on this 29th day of April, 2026.
E. K. MAKORI
JUDGE
In the presence of:
Ms. Kinyakanga for the Interested Party/Applicant
Kendi: Court Assistant
In the Absence of:
Mr. Atancha for the Plaintiff