RULING
PROLOGUE
[1] This ruling is in respect to the Notice of Preliminary Objection dated 15/6/2026 filed by the Defendant who objects to the suit on the following grounds namely:-
(a) THAT this Honourable Court lacks territorial jurisdiction to entertain and determine this suit since the subject matter/ suit parcel being situate in Gilgil Sub-county, falls within the natural purview and administrative station of the Environment and Land Court at Naivasha.
(b) THAT the suit is premature and incompetent for failure to exhaust available statutory remedies. The dispute concerns boundaries of registered land, which must first be determined by the Land Registrar in accordance with the Land Registration Act, 2012. Thus, the Plaintiff has bypassed this mandatory process, contrary to the doctrine of exhaustion of administrative remedies, and is adamant to submit to the same.
(c) THAT the Defendant/Respondent lacks locus standi to defend and maintain this suit. Since he is just a tenant and not the registered proprietor of the land next to the Plaintiff’s land.
(d)THAT the suit constitutes an abuse of the processes of this Court. The filing of this suit in the wrong station, without exhausting the Registrar’s process and in a manner that seeks to collaterally attack an ongoing process amounts to forum-shopping, multiplicity of proceedings and harassment of the Defendant.
[2] The Defendant also filed a Replying Affidavit dated 13/6/2026, sworn by Patrick Muraimu Maina, in opposition to where he adumbrated that the suit is both procedurally and substantively defective.
[3] A brief background to the matter is that the Plaintiff, vide an Application under Certificate of Urgency and Plaint, both dated 16/2/2026, moved this court and sought the following orders against the Defendant:
(a) A permanent injunction restraining the Defendant, his agents and or servants from entering, encroaching, interfering with beacons and or interfere with the Plaintiffs use and occupation of Plot Nos. GILGIL/KARONGA BLOCK 6/741 (KIKUYU) & GILGIL/KARONGA BLOCK 6/1596 (KIKUYU).
(b) Costs of this suit and interest therein.
(c) Any other alternative relief that this Honorable Court may deem fit and just to grant.
[4] The preliminary objection was canvassed by way of written submissions.
DEFENDANT’S SUBMISSIONS
[5] The Defendant, in support of his Preliminary Objection, contends that the suit is incurably defective on jurisdictional, procedural and substantive grounds. He first argues that this Honourable Court lacks territorial jurisdiction, since the suit parcels are situated in Gilgil Sub County, which falls within the administrative station of the Environment and Land Court at Naivasha. He relies on the case of Gitahi v Kamau (ELC Nakuru Appeal E21 of 2022) [2023] KEELC 16534 (KLR) to illustrate that misfiling in the wrong station compounds jurisdictional defects.
[6] Secondly, the Defendant emphasized that the suit is premature for failure to exhaust the statutory mechanism provided under the Land Registration Act, 2012 . He invokes Section 18(2) of the Act and contends that the dispute concerns the ascertainment of boundaries of registered land, which must first be determined by the Land Registrar before the Court can entertain the matter. He relies in the case of Gitahi v Kamau (supra) and Njoroge & 2 Others v Murang’a & 2 Others (Civil Application E026 of 2023) [2024] KECA 1014 (KLR) in support of the doctrine of exhaustion of statutory remedies.
[7] Thirdly, the Defendant challenges the Plaintiff's locus standi, contending that the Plaintiff is merely a tenant and is not the registered proprietor of the neighboring parcel of land. He cites the case of Alfred Njau & Others v City Council of Nairobi [1982] KAR 229 and Lei v Lemako & 3 Others (ELC E005 of 2020) [2025] .
[8] Fourthly, the Defendant submits that the suit constitutes an abuse of the court process. He contends that filing in the wrong station, bypassing the Registrar's process and allegedly collaterally attacking ongoing administrative proceedings amounts to forum shopping and harassment. He cites the case of Gathariki v Cheko Plot Owners Association & Another (Civil Appeal 116 of 2019) [2025] KECA 313 (KLR) , where multiplicity of suits was deemed an abuse of process.
[9] On the question of transfer, the Defendant maintains that transferring the suit to Naivasha ELC would not, in his view, cure the defect, since the statutory prerequisite of boundary determination remains unmet. He referred the court to the case of Gitahi (supra) , where transfer did not override lack of jurisdiction.
[10] Finally, on costs, the Defendant submits that costs follow the event and should be awarded.
PLAINTIFF’S SUBMISSIONS
[11] The Plaintiff’s submissions raise three central issues for determination. Firstly, whether the preliminary objection on jurisdiction has merit where he argues that the Environment and Land Court, being a creature of Article 162(2)(b) of the Constitution and the Environment and Land Court Act , enjoys original and unlimited jurisdiction. He places reliance on Section 15 of the Civil Procedure Act , which guides on the place of suing but does not oust substantive jurisdiction. The plaintiff cites two other authorities namely Kanampiu & Another v Marithi [2025] KEHC 7699 (KLR) and Swiss Deli Trade (Panama) Inc v Privamnuts EPZ Kenya Ltd.
[12] Secondly, the Plaintiff addresses the question of locus standi and submits that as a tenant and beneficial owner of the suit properties, he has a tangible interest sufficient to approach the court. He relies on Mutiso & 2 Others v Mutiso & Another [2026] KEELC 2072 (KLR ).
[13] Thirdly, the Plaintiff argues entitlement to reliefs sought and urges the court not to summarily dismiss the suit, citing D.T. Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1 , which held that no suit should be dismissed unless it is hopeless and beyond redemption. Having established locus standi and a reasonable cause of action, the plaintiff prays for judgment restraining the defendant from interfering with his occupation and use of the suit properties.
[14] In sum, the Plaintiff submits that the preliminary objection is without merit, that he has proper standing and that the reliefs sought are justified.
ANALYSIS AND DETERMINATION
[15] I have distilled the overarching issue for determination is whether the preliminary objection has merit.
[16] This being a Preliminary Objection, then it has to fall within the parameters of such objection as was set out in the oft-cited case, in the realm of preliminary objection,in Mukisa Biscuits Ltd Vs West End Distributors Ltd (1969) EA 696 where it was held as follows: -
“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.”
[17] Additionally, in Oraro vs Mbaja 2005 1 KLR 141 the court described a preliminary objection as follows;
“A ‘Preliminary Objection’, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a Preliminary Objection and yet it bears factual aspects calling for proof, or seek to adduce evidence for its authentication is not, as a matter of legal principle, a true Preliminary Objection which the Court should allow to proceed.”
[18] The Defendant’s Objection is based on jurisdiction, so it is a valid point to raise as a Preliminary Objection.
[19] The Court of Appeal in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 , held that “jurisdiction is everything” and without it, a court has no power to take even one step further.
[20] On where the suit ought to be instituted, the Defendant argues that the suit parcels are situated in Gilgil Sub County, hence the matter ought to have been filed at Naivasha Environment and Land Court . While the Plaintiff, conversely , argues that while Section 15 of the Civil Procedure Act guides on the place of suing, it does not oust the substantive jurisdiction of the Environment and Land Court. This argument is not novel and a lot of judicial ink has gone into addressing it.
[21] Section 15 of the Civil Procedure Act provides as follows;
“Other suits to be instituted where defendant resides or cause of action arises subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction—
(a)the defendant or each of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain; or
(b)any of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, provided either the leave of the court is given, or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid acquiesce in such institution; or
(c)the cause of action, wholly or in part, arises.
(1)—Where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence.
(2)—A corporation shall be deemed to carry on business at its sole or principal office in Kenya, or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.
(3)—In suits arising out of contract, the cause of action arises within the meaning of this section at any of the following places, namely—
(i)the place where the contract was made;
(ii)the place where the contract was to be performed or the performance thereof completed;
(iii)the place where in performance of the contract any money to which the suit relates was expressly or impliedly payable.”
[22] Article 162(2)(b) of the Constitution establishes the Environment and Land Court to hear and determine disputes relating to the environment and the use, occupation and title to land.
[23] Section 13(2) of the Environment and Land Court Act, 2011 further provides that the Court shall have jurisdiction to hear and determine disputes relating to “occupation, use of and title to land.”
[24] Furthermore Section 13(5)(a) further provides that in exercise of its jurisdiction, the Court shall have power to make any order and grant any relief as the Court deems fit and just, including interim or permanent preservation orders including injunctions.
[25] Accordingly, the jurisprudence is achingly clear that while Section 15 Civil Procedure Ac t regulates venue or place, it does not strip this Court of the jurisdictional competence.
[26] In Kanampiu & Another v Marithi [2025] KEHC 7699 (KLR) , the High Court held that territorial jurisdiction rules are intended to prevent hardship but do not strip a court of competence. It stated the following:
“It is my further view that Section 15 of the Act is not meant to oust the jurisdiction of this court. It is there to ensure that a Defendant is not burdened by litigating in a distant and inconvenient forum, and to facilitate the expedient and affordable resolution of matters. This was so held in Kassam and Another Vs Pearl Beach Hotles T/A English Point Maliva (Supra) where it was held;
“The overriding objective of the Act and the Rules is to facilitate the just, expeditious, proportionate and or affordable resolution of civil disputes governed by the Act. In furtherance of this objective the courts are mandated to ensure the just determination of proceedings, efficient disposal of the business of the court, the efficient use of available judicial and administrative resources and timely disposal of proceedings at a cost affordable to the respective parties.””
[27] The approach on this issue is axiomatic. In Swiss Deli Trade (Panama) Inc v Privamnuts EPZ Kenya Ltd [2020] eKLR , where the court emphasized that suits filed in the “wrong” station may be transferred rather than dismissed. The proper remedy, therefore, is transfer under Section 17 Civil Procedure Act , not striking out. It was stated thus:
“Amongst the objectives for the provisions on place of suing is to ensure that suits are filed in as much as possible where the cause of action arose or where the subject matter is situate or in some instances where the Defendant arises. Suits should not be instituted in places that causes unnecessary hardship to the Defendant and which may hinder access to justice. Again, suits should not be lumped in one station when they could be heard elsewhere as this may lead to clogging up of some Courts in a way that flies in the face of equitable access to justice.
The provisions of Section 15 which restricts the institution of suits within the local limits of High Court stations should be viewed in that light. So that “territory jurisdiction” placed by Section 15 does not mean that the “wrong” High Court does not have substantive jurisdiction in respect to the matter.
If I understand the rationale for the provisions of place of suing to be as discussed above, then this Court has power to simply transfer this suit to the place it should have been filed in the first place…”
[28] On the issue of exhaustion of statutory remedies; the jurisprudence emerging from the superior courts has consistently underscored the importance of the doctrine of exhaustion. This principle was reiterated in Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] eKLR, where the court emphasized that courts should be fora of last resort and not the first port of call where Parliament has established alternative dispute resolution mechanisms.
[29] It is equally settled that the applicability of the doctrine of exhaustion depends on the nature of the dispute presented before the court interlinked with the relief or multifaced reliefs being sought. Therefore, a party invoking the doctrine must demonstrate that the dispute falls within the scope of the alternative mechanism and that the alternative forum is capable of granting the relief(s) sought. This court must therefore interrogate the pleadings before it to ascertain whether the dispute is one that properly falls within the mandate of the registrar.
[30] This court notes that the Plaintiff pleads ex facie trespass and encroachment seeking injunctive reliefs while the Defendant contends that the dispute concerns boundaries, which he contends must first be determined by the Land Registrar under the Land Registration Act, 2012. It is true that Section 18 of the Land Registration Act vests the Land Registrar with jurisdiction to ascertain and fix boundaries.
[31] Section 18 of the Land Registration Act . provides;
“18 (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 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 situations 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."
[32] In the instant case, juxtaposing the foregoing provision and the scrutable reading of the pleading it is abundantly clear that the underlying issue is primarily on boundary delineation and ascertainment whose determination falls squarely under the jurisdiction of the registrar.
[33] The Court of Appeal held as follows in Estate Sonrisa Ltd & Another v Samuel Kamau Macharia & 2 Others [2020] eKLR that:-
“The ascertainment and fixing of boundary in dispute involve three parties, the owners of the affected parcels, the surveyor and the Registrar….. It is the Land Registration Act that makes provisions relating to the determination of boundaries. Those provisions are found in sections 16 to 19. Specifically, for this dispute, the Registrar is empowered, after giving notice to all the affected parties, in this case, the 1st Appellant and 1st Respondent, indeed as well as any owner whose land adjoins the boundaries in question, and with the assistance of the surveyor, to ascertain and fix the disputed boundaries.”
[34] Accordingly, that argument has merit to the extent that the registrar should be accorded the first opportunity to consider the matter. It was not in contestation that it is the forum, institution or agency that has been legislatively conferred with jurisdiction to determine the matter. Similarly, the Court of Appeal in Kisumu stated in Kibos Distillers Ltd & 4 others v Adega & 3 others (Civil Appeal 153 of 2019) [2020] KECA 875 (KLR) (31 January 2020) (Judgment) reiterated and emphasized that:-
“Even if a court has original jurisdiction, the concept of original jurisdiction does not operate to oust the jurisdiction of other competent organs that have legislatively been mandated to hear and determine a dispute. Original jurisdiction is not an ouster clause that ousts the jurisdiction of other competent organs.”
[35] Be that as it may, in an unfortunate twist of fate, it emerged that the plaintiff/respondent counsel had been disbarred and struck off the roll of advocates. It was the general consensus of the parties that effectively the plaintiff suit was incompetent and ought to be struck out.
[36] Having stated the foregoing, I would ordinarily have upheld the preliminary objection without necessarily proceeding to consider the grounds hereinabove. However, I considered it fundamental to add my voice on the question of jurisdiction vis-à-vis the doctrine of exhaustion, particularly in the context of the issue before the Court viz on the inundated disputed boundaries suits. Courts must put their foot down to give effect to and breathe life into this indispensable doctrine. I need not ingeminate the rationale underpinning it.
DISPOSITION
[37] In denouement, based on the foregoing reason, I dismiss the plaintiff’s suit with cost.
[38] It is so ordered.
DATED,SIGNED AND DELIVERED AT NAKURU ON THIS 17th SEPTEMBER,2026.
B.M EKHUBI
JUDGE
PROLOGUE
[1] This ruling is in respect to the Notice of Preliminary Objection dated 15/6/2026 filed by the Defendant who objects to the suit on the following grounds namely:-
(a) THAT this Honourable Court lacks territorial jurisdiction to entertain and determine this suit since the subject matter/ suit parcel being situate in Gilgil Sub-county, falls within the natural purview and administrative station of the Environment and Land Court at Naivasha.
(b) THAT the suit is premature and incompetent for failure to exhaust available statutory remedies. The dispute concerns boundaries of registered land, which must first be determined by the Land Registrar in accordance with the Land Registration Act, 2012. Thus, the Plaintiff has bypassed this mandatory process, contrary to the doctrine of exhaustion of administrative remedies, and is adamant to submit to the same.
(c) THAT the Defendant/Respondent lacks locus standi to defend and maintain this suit. Since he is just a tenant and not the registered proprietor of the land next to the Plaintiff’s land.
(d)THAT the suit constitutes an abuse of the processes of this Court. The filing of this suit in the wrong station, without exhausting the Registrar’s process and in a manner that seeks to collaterally attack an ongoing process amounts to forum-shopping, multiplicity of proceedings and harassment of the Defendant.
[2] The Defendant also filed a Replying Affidavit dated 13/6/2026, sworn by Patrick Muraimu Maina, in opposition to where he adumbrated that the suit is both procedurally and substantively defective.
[3] A brief background to the matter is that the Plaintiff, vide an Application under Certificate of Urgency and Plaint, both dated 16/2/2026, moved this court and sought the following orders against the Defendant:
(a) A permanent injunction restraining the Defendant, his agents and or servants from entering, encroaching, interfering with beacons and or interfere with the Plaintiffs use and occupation of Plot Nos. GILGIL/KARONGA BLOCK 6/741 (KIKUYU) & GILGIL/KARONGA BLOCK 6/1596 (KIKUYU).
(b) Costs of this suit and interest therein.
(c) Any other alternative relief that this Honorable Court may deem fit and just to grant.
[4] The preliminary objection was canvassed by way of written submissions.
DEFENDANT’S SUBMISSIONS
[5] The Defendant, in support of his Preliminary Objection, contends that the suit is incurably defective on jurisdictional, procedural and substantive grounds. He first argues that this Honourable Court lacks territorial jurisdiction, since the suit parcels are situated in Gilgil Sub County, which falls within the administrative station of the Environment and Land Court at Naivasha. He relies on the case of Gitahi v Kamau (ELC Nakuru Appeal E21 of 2022) [2023] KEELC 16534 (KLR) to illustrate that misfiling in the wrong station compounds jurisdictional defects.
[6] Secondly, the Defendant emphasized that the suit is premature for failure to exhaust the statutory mechanism provided under the Land Registration Act, 2012 . He invokes Section 18(2) of the Act and contends that the dispute concerns the ascertainment of boundaries of registered land, which must first be determined by the Land Registrar before the Court can entertain the matter. He relies in the case of Gitahi v Kamau (supra) and Njoroge & 2 Others v Murang’a & 2 Others (Civil Application E026 of 2023) [2024] KECA 1014 (KLR) in support of the doctrine of exhaustion of statutory remedies.
[7] Thirdly, the Defendant challenges the Plaintiff's locus standi, contending that the Plaintiff is merely a tenant and is not the registered proprietor of the neighboring parcel of land. He cites the case of Alfred Njau & Others v City Council of Nairobi [1982] KAR 229 and Lei v Lemako & 3 Others (ELC E005 of 2020) [2025] .
[8] Fourthly, the Defendant submits that the suit constitutes an abuse of the court process. He contends that filing in the wrong station, bypassing the Registrar's process and allegedly collaterally attacking ongoing administrative proceedings amounts to forum shopping and harassment. He cites the case of Gathariki v Cheko Plot Owners Association & Another (Civil Appeal 116 of 2019) [2025] KECA 313 (KLR) , where multiplicity of suits was deemed an abuse of process.
[9] On the question of transfer, the Defendant maintains that transferring the suit to Naivasha ELC would not, in his view, cure the defect, since the statutory prerequisite of boundary determination remains unmet. He referred the court to the case of Gitahi (supra) , where transfer did not override lack of jurisdiction.
[10] Finally, on costs, the Defendant submits that costs follow the event and should be awarded.
PLAINTIFF’S SUBMISSIONS
[11] The Plaintiff’s submissions raise three central issues for determination. Firstly, whether the preliminary objection on jurisdiction has merit where he argues that the Environment and Land Court, being a creature of Article 162(2)(b) of the Constitution and the Environment and Land Court Act , enjoys original and unlimited jurisdiction. He places reliance on Section 15 of the Civil Procedure Act , which guides on the place of suing but does not oust substantive jurisdiction. The plaintiff cites two other authorities namely Kanampiu & Another v Marithi [2025] KEHC 7699 (KLR) and Swiss Deli Trade (Panama) Inc v Privamnuts EPZ Kenya Ltd.
[12] Secondly, the Plaintiff addresses the question of locus standi and submits that as a tenant and beneficial owner of the suit properties, he has a tangible interest sufficient to approach the court. He relies on Mutiso & 2 Others v Mutiso & Another [2026] KEELC 2072 (KLR ).
[13] Thirdly, the Plaintiff argues entitlement to reliefs sought and urges the court not to summarily dismiss the suit, citing D.T. Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1 , which held that no suit should be dismissed unless it is hopeless and beyond redemption. Having established locus standi and a reasonable cause of action, the plaintiff prays for judgment restraining the defendant from interfering with his occupation and use of the suit properties.
[14] In sum, the Plaintiff submits that the preliminary objection is without merit, that he has proper standing and that the reliefs sought are justified.
ANALYSIS AND DETERMINATION
[15] I have distilled the overarching issue for determination is whether the preliminary objection has merit.
[16] This being a Preliminary Objection, then it has to fall within the parameters of such objection as was set out in the oft-cited case, in the realm of preliminary objection,in Mukisa Biscuits Ltd Vs West End Distributors Ltd (1969) EA 696 where it was held as follows: -
“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.”
[17] Additionally, in Oraro vs Mbaja 2005 1 KLR 141 the court described a preliminary objection as follows;
“A ‘Preliminary Objection’, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a Preliminary Objection and yet it bears factual aspects calling for proof, or seek to adduce evidence for its authentication is not, as a matter of legal principle, a true Preliminary Objection which the Court should allow to proceed.”
[18] The Defendant’s Objection is based on jurisdiction, so it is a valid point to raise as a Preliminary Objection.
[19] The Court of Appeal in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 , held that “jurisdiction is everything” and without it, a court has no power to take even one step further.
[20] On where the suit ought to be instituted, the Defendant argues that the suit parcels are situated in Gilgil Sub County, hence the matter ought to have been filed at Naivasha Environment and Land Court . While the Plaintiff, conversely , argues that while Section 15 of the Civil Procedure Act guides on the place of suing, it does not oust the substantive jurisdiction of the Environment and Land Court. This argument is not novel and a lot of judicial ink has gone into addressing it.
[21] Section 15 of the Civil Procedure Act provides as follows;
“Other suits to be instituted where defendant resides or cause of action arises subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction—
(a)the defendant or each of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain; or
(b)any of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, provided either the leave of the court is given, or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid acquiesce in such institution; or
(c)the cause of action, wholly or in part, arises.
(1)—Where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence.
(2)—A corporation shall be deemed to carry on business at its sole or principal office in Kenya, or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.
(3)—In suits arising out of contract, the cause of action arises within the meaning of this section at any of the following places, namely—
(i)the place where the contract was made;
(ii)the place where the contract was to be performed or the performance thereof completed;
(iii)the place where in performance of the contract any money to which the suit relates was expressly or impliedly payable.”
[22] Article 162(2)(b) of the Constitution establishes the Environment and Land Court to hear and determine disputes relating to the environment and the use, occupation and title to land.
[23] Section 13(2) of the Environment and Land Court Act, 2011 further provides that the Court shall have jurisdiction to hear and determine disputes relating to “occupation, use of and title to land.”
[24] Furthermore Section 13(5)(a) further provides that in exercise of its jurisdiction, the Court shall have power to make any order and grant any relief as the Court deems fit and just, including interim or permanent preservation orders including injunctions.
[25] Accordingly, the jurisprudence is achingly clear that while Section 15 Civil Procedure Ac t regulates venue or place, it does not strip this Court of the jurisdictional competence.
[26] In Kanampiu & Another v Marithi [2025] KEHC 7699 (KLR) , the High Court held that territorial jurisdiction rules are intended to prevent hardship but do not strip a court of competence. It stated the following:
“It is my further view that Section 15 of the Act is not meant to oust the jurisdiction of this court. It is there to ensure that a Defendant is not burdened by litigating in a distant and inconvenient forum, and to facilitate the expedient and affordable resolution of matters. This was so held in Kassam and Another Vs Pearl Beach Hotles T/A English Point Maliva (Supra) where it was held;
“The overriding objective of the Act and the Rules is to facilitate the just, expeditious, proportionate and or affordable resolution of civil disputes governed by the Act. In furtherance of this objective the courts are mandated to ensure the just determination of proceedings, efficient disposal of the business of the court, the efficient use of available judicial and administrative resources and timely disposal of proceedings at a cost affordable to the respective parties.””
[27] The approach on this issue is axiomatic. In Swiss Deli Trade (Panama) Inc v Privamnuts EPZ Kenya Ltd [2020] eKLR , where the court emphasized that suits filed in the “wrong” station may be transferred rather than dismissed. The proper remedy, therefore, is transfer under Section 17 Civil Procedure Act , not striking out. It was stated thus:
“Amongst the objectives for the provisions on place of suing is to ensure that suits are filed in as much as possible where the cause of action arose or where the subject matter is situate or in some instances where the Defendant arises. Suits should not be instituted in places that causes unnecessary hardship to the Defendant and which may hinder access to justice. Again, suits should not be lumped in one station when they could be heard elsewhere as this may lead to clogging up of some Courts in a way that flies in the face of equitable access to justice.
The provisions of Section 15 which restricts the institution of suits within the local limits of High Court stations should be viewed in that light. So that “territory jurisdiction” placed by Section 15 does not mean that the “wrong” High Court does not have substantive jurisdiction in respect to the matter.
If I understand the rationale for the provisions of place of suing to be as discussed above, then this Court has power to simply transfer this suit to the place it should have been filed in the first place…”
[28] On the issue of exhaustion of statutory remedies; the jurisprudence emerging from the superior courts has consistently underscored the importance of the doctrine of exhaustion. This principle was reiterated in Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] eKLR, where the court emphasized that courts should be fora of last resort and not the first port of call where Parliament has established alternative dispute resolution mechanisms.
[29] It is equally settled that the applicability of the doctrine of exhaustion depends on the nature of the dispute presented before the court interlinked with the relief or multifaced reliefs being sought. Therefore, a party invoking the doctrine must demonstrate that the dispute falls within the scope of the alternative mechanism and that the alternative forum is capable of granting the relief(s) sought. This court must therefore interrogate the pleadings before it to ascertain whether the dispute is one that properly falls within the mandate of the registrar.
[30] This court notes that the Plaintiff pleads ex facie trespass and encroachment seeking injunctive reliefs while the Defendant contends that the dispute concerns boundaries, which he contends must first be determined by the Land Registrar under the Land Registration Act, 2012. It is true that Section 18 of the Land Registration Act vests the Land Registrar with jurisdiction to ascertain and fix boundaries.
[31] Section 18 of the Land Registration Act . provides;
“18 (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 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 situations 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."
[32] In the instant case, juxtaposing the foregoing provision and the scrutable reading of the pleading it is abundantly clear that the underlying issue is primarily on boundary delineation and ascertainment whose determination falls squarely under the jurisdiction of the registrar.
[33] The Court of Appeal held as follows in Estate Sonrisa Ltd & Another v Samuel Kamau Macharia & 2 Others [2020] eKLR that:-
“The ascertainment and fixing of boundary in dispute involve three parties, the owners of the affected parcels, the surveyor and the Registrar….. It is the Land Registration Act that makes provisions relating to the determination of boundaries. Those provisions are found in sections 16 to 19. Specifically, for this dispute, the Registrar is empowered, after giving notice to all the affected parties, in this case, the 1st Appellant and 1st Respondent, indeed as well as any owner whose land adjoins the boundaries in question, and with the assistance of the surveyor, to ascertain and fix the disputed boundaries.”
[34] Accordingly, that argument has merit to the extent that the registrar should be accorded the first opportunity to consider the matter. It was not in contestation that it is the forum, institution or agency that has been legislatively conferred with jurisdiction to determine the matter. Similarly, the Court of Appeal in Kisumu stated in Kibos Distillers Ltd & 4 others v Adega & 3 others (Civil Appeal 153 of 2019) [2020] KECA 875 (KLR) (31 January 2020) (Judgment) reiterated and emphasized that:-
“Even if a court has original jurisdiction, the concept of original jurisdiction does not operate to oust the jurisdiction of other competent organs that have legislatively been mandated to hear and determine a dispute. Original jurisdiction is not an ouster clause that ousts the jurisdiction of other competent organs.”
[35] Be that as it may, in an unfortunate twist of fate, it emerged that the plaintiff/respondent counsel had been disbarred and struck off the roll of advocates. It was the general consensus of the parties that effectively the plaintiff suit was incompetent and ought to be struck out.
[36] Having stated the foregoing, I would ordinarily have upheld the preliminary objection without necessarily proceeding to consider the grounds hereinabove. However, I considered it fundamental to add my voice on the question of jurisdiction vis-à-vis the doctrine of exhaustion, particularly in the context of the issue before the Court viz on the inundated disputed boundaries suits. Courts must put their foot down to give effect to and breathe life into this indispensable doctrine. I need not ingeminate the rationale underpinning it.
DISPOSITION
[37] In denouement, based on the foregoing reason, I dismiss the plaintiff’s suit with cost.
[38] It is so ordered.
DATED,SIGNED AND DELIVERED AT NAKURU ON THIS 17th SEPTEMBER,2026.
B.M EKHUBI
JUDGE