BRIEF FACTS
This ruling is in respect of the 1st Defendant’s preliminary objection dated 7th April, 2025 on the following grounds:
1. That the subject matter of this suit against the 1st Defendant herein is a boundary dispute regarding Nakuru/Nyota Complex Scheme/112 owed by the 1st Defendant which falls within the jurisdiction of the Land Registrar pursuant to Section 18 of the Land Registration Act, 2012.
2. That this Honourable Court lacks jurisdiction to hear and determine boundary disputes unless the same has first been determined by the Land Registrar as required under Section 189 of the Land Registration Act, 2012.
3. That the Plaintiff’s suit against the 1st Defendant is therefore fatally defective, premature and an abuse of the court process.
4. That the 1st Defendant prays that this suit be struck out with costs to the Defendants.
Response
None of the parties filed any response.
Submissions
Counsel for the Plaintiff filed his submissions dated 30th June, 2025 where his sole issue for determination was whether the preliminary objection is merited. It was his submission that the Plaintiff’s cause of action is based on trespass. He further submits that the Plaintiff has among others prayed for orders of permanent injunction against the Defendants, an order compelling the 2nd Defendant to amend the RIM in accordance with the allocation map used to place beacons within Nyota Complex Settlement Scheme, which is the initial map which tally with the ground.
He submits that the nature of the prayers sought are matters that are fit and proper to be argued in the substantive suit. He further submits that this court has power to hear and determine under Section 13(2) of the Environment and Land Court Act, 2011.
He relied on the cases of Thika Environment & Land Court Case No. ELC. 602 of 2017 Fredrick Nganga V Prof. Peter Mungai Njuho and Hudson Kulundu & 2 others v Martha Chibetti & another, Kakamega ELC Case No. 57 OF 2019 [2020] eKLR.
It was counsel’s submission that the boundaries of the two parcels and other properties within Nyota Complex Block have already been determined in accordance with the Land Registration Act. He submits that the suit is not in contravention of Section 18(2) of the Land Registration Act.
He submits that the Plaintiff and the 1st Defendant’s parcels share a common boundary, which upon survey in the year 1998, both participated in the survey, placing of beacons and fencing and thus share a common boundary. He also submits that the fact that the two parcels share a common boundary is an indication that the boundaries have already been fixed and the court has jurisdiction over the matter.
Analysis and Determination
This court has considered the preliminary objection and submissions and is of the view that the main issue for determination is whether the preliminary objection is merited.
In the case of Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] E.A the court held as follows:
“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 has to be ascertained or if what is sought is the exercise of judicial discretion.”
“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 on 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.”
In the case of George Oraro V Barak Eston Mbaja (Civil Suit 85 of 1992) [2005] KEHC 731 (KLR) (Civ) (6 July 2005) (Ruling) the court held as follows:
“Anything that purports to be a preliminary objection must not deal with disputed facts and it must not derive its foundation from factual information which stands to be tested by rules of evidence”.
It is therefore imperative for this court to establish whether the preliminary objection as raised by the 1st Defendant meets the threshold as enumerated in the decision in Mukisa Biscuits (supra). It was the 1st Defendant’s contention that the Plaintiff ought to have sought redress against the Defendants before the Land Registrar as the claim is a boundary issue which this court lacks the jurisdiction to hear and determine. The Plaintiff on the other hand argues that the claim is for trespass and not a boundary issue as the boundaries have been clearly set out.
It is this court’s view that this ground of jurisdiction as raised falls within the definition of a Preliminary point of law and shall proceed to determine it.
I have keenly perused the plaint dated 22nd March, 2025 and it is this court’s view that the claim is based on alleged trespass by the 1st Defendant on the Plaintiff’s suit property.
It is worthwhile to note that under paragraph 9 of the Plaint, the Plaintiff stated that there were physical and visible beacons and fence surrounding the suit property that marked the area. The upshot of the foregoing is that the preliminary objection dated 7th April, 2025 is hereby dismissed with costs. It is so ordered.
This ruling is in respect of the 1st Defendant’s preliminary objection dated 7th April, 2025 on the following grounds:
1. That the subject matter of this suit against the 1st Defendant herein is a boundary dispute regarding Nakuru/Nyota Complex Scheme/112 owed by the 1st Defendant which falls within the jurisdiction of the Land Registrar pursuant to Section 18 of the Land Registration Act, 2012.
2. That this Honourable Court lacks jurisdiction to hear and determine boundary disputes unless the same has first been determined by the Land Registrar as required under Section 189 of the Land Registration Act, 2012.
3. That the Plaintiff’s suit against the 1st Defendant is therefore fatally defective, premature and an abuse of the court process.
4. That the 1st Defendant prays that this suit be struck out with costs to the Defendants.
Response
None of the parties filed any response.
Submissions
Counsel for the Plaintiff filed his submissions dated 30th June, 2025 where his sole issue for determination was whether the preliminary objection is merited. It was his submission that the Plaintiff’s cause of action is based on trespass. He further submits that the Plaintiff has among others prayed for orders of permanent injunction against the Defendants, an order compelling the 2nd Defendant to amend the RIM in accordance with the allocation map used to place beacons within Nyota Complex Settlement Scheme, which is the initial map which tally with the ground.
He submits that the nature of the prayers sought are matters that are fit and proper to be argued in the substantive suit. He further submits that this court has power to hear and determine under Section 13(2) of the Environment and Land Court Act, 2011.
He relied on the cases of Thika Environment & Land Court Case No. ELC. 602 of 2017 Fredrick Nganga V Prof. Peter Mungai Njuho and Hudson Kulundu & 2 others v Martha Chibetti & another, Kakamega ELC Case No. 57 OF 2019 [2020] eKLR.
It was counsel’s submission that the boundaries of the two parcels and other properties within Nyota Complex Block have already been determined in accordance with the Land Registration Act. He submits that the suit is not in contravention of Section 18(2) of the Land Registration Act.
He submits that the Plaintiff and the 1st Defendant’s parcels share a common boundary, which upon survey in the year 1998, both participated in the survey, placing of beacons and fencing and thus share a common boundary. He also submits that the fact that the two parcels share a common boundary is an indication that the boundaries have already been fixed and the court has jurisdiction over the matter.
Analysis and Determination
This court has considered the preliminary objection and submissions and is of the view that the main issue for determination is whether the preliminary objection is merited.
In the case of Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] E.A the court held as follows:
“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 has to be ascertained or if what is sought is the exercise of judicial discretion.”
“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 on 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.”
In the case of George Oraro V Barak Eston Mbaja (Civil Suit 85 of 1992) [2005] KEHC 731 (KLR) (Civ) (6 July 2005) (Ruling) the court held as follows:
“Anything that purports to be a preliminary objection must not deal with disputed facts and it must not derive its foundation from factual information which stands to be tested by rules of evidence”.
It is therefore imperative for this court to establish whether the preliminary objection as raised by the 1st Defendant meets the threshold as enumerated in the decision in Mukisa Biscuits (supra). It was the 1st Defendant’s contention that the Plaintiff ought to have sought redress against the Defendants before the Land Registrar as the claim is a boundary issue which this court lacks the jurisdiction to hear and determine. The Plaintiff on the other hand argues that the claim is for trespass and not a boundary issue as the boundaries have been clearly set out.
It is this court’s view that this ground of jurisdiction as raised falls within the definition of a Preliminary point of law and shall proceed to determine it.
I have keenly perused the plaint dated 22nd March, 2025 and it is this court’s view that the claim is based on alleged trespass by the 1st Defendant on the Plaintiff’s suit property.
It is worthwhile to note that under paragraph 9 of the Plaint, the Plaintiff stated that there were physical and visible beacons and fence surrounding the suit property that marked the area. The upshot of the foregoing is that the preliminary objection dated 7th April, 2025 is hereby dismissed with costs. It is so ordered.