(In respect of the Defendant/Respondents application dated 26th February 2025 brought under the provisions of Order 2 rule 15, Order 51 rule 1 of the Civil Procedure Rules sections 1A, 1B & 3A of the Civil Procedure Act and Article 159 of the constitution of Kenya.)
Introduction.
1. The application under consideration is the Defendant’s Notice of Motion dated 26th February 2025 which seeks the striking out of the Plaintiff’s suit with costs. The application is premised on the grounds that the Plaintiff’s suit is a boundary dispute which ought to be determined as provided under sections 18 and 19 of the Land Registration Act. The Defendant asserts the jurisdiction to hear and determine a boundary dispute is with the Land Registrar and not this court.
2. The Defendant’s application is supported by the affidavit of Charles Mbevi kaloki, the presiding Bishop of the Eternity Gospel Church and Ministries sworn on 26th February 2025. The deponent reiterates the grounds on the face of the application and beseeches the court to allow the application.
Response by the Plaintiff.
3. The Plaintiff’s response to the Defendant’s application was in the form of a replying affidavit sworn on 23rd April 2025. At paragraph 9 of the said affidavit, the Plaintiff admits that what is before his suit is indeed a boundary dispute as envisaged under sections 18 and 19 of the Land Registration Act. The Plaintiff states thus;
“That in reply to paragraph 7 as advised by my advocate on record which advise I verily believe to be true that indeed this is a boundary dispute as envisaged under sections 18 and 19 of the Land Registration Act but that does not bar an aggrieved party from approaching this (court) to seek interim reliefs of injunctions to bar the aggressor pending hearing and conclusion of the dispute before the Lands Registrar.”
4. The Plaintiff further affirms that he actually made an application to the Land Registrar but the Defendant upon being given summons declined to turn up and the Defendant explains that as the reason why he moved this court for interim reliefs, pending hearing and determination of the dispute.
5. In its supplementary affidavit, the Defendant denies that the Plaintiff ever lodged an application with the Land Registrar for the ascertainment of a boundary dispute. The deponent further asserts that the Defendant has never been served with any such notice as alleged by the Plaintiff.
6. The application was orally argued before the court. The record of the proceedings captures the parties submissions. I need not replicate them verbatim.
Issues for determination.
7. The sole issue for determination is whether this court has the jurisdiction to entertain and determine this matter.
Determination.
8. Jurisdiction is a fundamental issue which ideally must be determined at the earliest opportunity. As held in the case of Owners of Motor Vessel “Lillian” -vs- Caltex Oil (K) Ltd (1989) KLR 1,
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence.”
9. The Supreme Court of Kenya in Samuel Kamau Macharia & another -versus- Kenya Commercial Bank Ltd & 2 others (2012) eKLR, was emphatic that;
“A court’s jurisdiction flows from either the constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the constitution or other written law.”
10. The Supreme Court In the Matter of Interim Independent Electoral Commission [2011] eKLR further elaborated the position as follows:
Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14):
“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step.”
The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity.”
11. The Defendant’s position is that this court lacks the jurisdiction to entertain this matter, being a boundary dispute. As I have already stated in the analysis of the pleadings the Plaintiff explicitly admits that what is before the court is indeed a boundary dispute as contemplated under sections 18 and 19 of the Land Registration Act. He however states that he is not barred from seeking interim reliefs from this court pending hearing and determination of the boundary dispute by the Land Registrar.
12. Section 18(2) of the Land Registration Act explicitly bars this court from entertaining any action or other proceedings relating to a dispute as to the boundaries of registered land. In my opinion, the provisions is unambiguous and is crafted in mandatory terms. It states that;
“The court shall not entertain action or other proceedings……..”
13. There is no room for entertaining any sort of proceedings including proceedings for interim reliefs contrary to the assertions by the Plaintiff.
14. The Court of Appeal in Azzuri Limited -vs- Pink Properties Ltd (2018) eKLR, clarified this issue stating that,
“We are in agreement with the learned Judge’s conclusion that the dispute ought to have been heard by the Land Registrar as stated in the statute. Jurisdiction is everything. It has been said many times before, that, without it a court has no powers to make one more step, irrespective of the strength and nature of evidence in the parties possession. …… in this case, reference of the dispute to the ELC at first instance was proscribed by statute and on that account alone, the appellant’s case was (a) nonstarter.”
15. The above pronouncement by the Court of Appeal is sufficient answer to the question whether this court has jurisdiction to entertain this matter. The court lacks the jurisdiction and must lay down its tool at this juncture.
16. Consequently, the Plaintiff’s suit is hereby struck out with costs to the Defendant.
Ordered accordingly.
Dated, Signed and Delivered Virtually this 21st Day of May, 2026.
M.D. MWANGI
JUDGE
In the virtual presence of:
Mr. Kyobika for the Plaintiff/Respondent
Ms. Magee for the Defendant/Applicant
Court Assistant: Alex
M.D. MWANGI
JUDGE
| RULING ELC/E081/2021 2 |