LESWAKEI MORUO KANTAI VS DANIEL OLE KINAMPU AND CHARLES MPASIO OLE KINAMPU AND 3 Others

JUDGEMENT

1. The Appellant herein filed a Memorandum of Appeal dated 11.04.2023 (hereinafter referred to as “the present Appeal”) against the Ruling pronounced on the 22.03.2023 in the proceedings known as KILGORIS SPM ELC CASE NO. E058 OF 2021 (hereinafter referred to as “the Trial Court proceedings”) by the Honourable Wilson K. Kitur (hereinafter referred to as “the Trial Court”) on the following grounds;-
2.  The Learned Magistrate erred in law by dismissing the Preliminary Objection raised by the Appellant challenging the jurisdiction of the Lower Court to hear and determine the issues in the suit.
3. The Learned Magistrate misconstrued the provisions of the law regulating the jurisdiction of the lower Court in land matters and boundary disputes.
4. The Learned Magistrate failed to appreciate that the suit before the Lower Court was a boundary dispute and as such, the Lower Court lacked the jurisdiction to hear and determine the matter.
5. The Learned Magistrate failed to appreciate that the issues raised by the Respondent in the suit primarily related to the demarcation and the delimitation of boundaries of the land in dispute.
6. The Learned Magistrate failed to consider the totality of the pleadings and evidence adduced before the Court and came to an erroneous conclusion that the suit was not purely a boundary dispute.
7. The Learned Magistrate failed to properly evaluate the pleadings and evidence before the Court and thereby came to an erroneous conclusion that the Lower Court had jurisdiction to hear and determine the suit.
8. The Appellant therefore based on the above grounds sought for the following Orders in the present Appeal; -
9. An Order allowing this Appeal.
10. An Order setting aside the decision of the Lower Court.
11. An Order striking out the suit for want of prosecution.
12. The Costs of this Appeal be borne by the Respondents.
13. Any other order(s) this Honourable Court may deem fit to make in the circumstances.
14. The present Appeal was duly served on the Respondents and after admission, the Court directed that it would be canvassed by way of written submissions.
15. The Appellants prepared and filed their submissions dated 04.06.2024 while the Respondents filed their submissions dated 12.06.2024.
16. To begin with, the Court has been called to exercise its Appellant jurisdiction by the Appellant and relook  at the Ruling pronounced on the 22.03.2023 by the Trial Court.
17. In the celebrated case of SELLE & ANOTHER-VERSUS- ASSOCIATED MOTOR BOAT CO.LTD & OTHERS (1968) EA 123 the Court stated as follows as regards Appeals; -

“A first appellate court is mandated to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand.”

1. This Court therefore is called upon to relook at the Preliminary Objection filed before the Trial Court and evaluate the facts and the law with a view of arriving at its own independent decision on whether or not to allow this Appeal.
2. The point of departure in this exercise is to relook at the Preliminary Objection dated 13.10.2022 which gave rise to the Ruling pronounced on the 22.03.2023 by the Trial Court.
3. According to the Record of Appeal dated 18.03.2024, the Appellant filed a Preliminary Objection dated 13.10.2022 on the following grounds; -
4. This Court lacks jurisdiction to hear and determine the instant suit as it offends the express provisions of Section 18 (2) and 19 of the Land Registration Act, No. 3 of 2012 for reasons that; -
5. The subject of the suit is a boundary dispute which falls within the jurisdiction and province of the Land Registrar.
6. That the suit is fatally defective, misconceived and mischievous or otherwise an abuse of the Court process and therefore is unsustainable in the obtaining circumstances.
7. After the filing of this Preliminary Objection dated 13.10.2022, the parties canvassed the same by way of written submissions.
8. The first party to file their submissions was the Appellant who did so through the Submission dated 01.11.2022 while the Respondents filed their submissions dated 18.11.2022.
9. The Preliminary Objection was ultimately determined on the 22.03.2023 with an Order of dismissal hence the present Appeal.
10. This Court has taken time to relook at the Preliminary Objection dated 13.10.2022 as well as the Grounds outlined in the present Appeal and identifies the issues for determination as follows; -

ISSUE NO. 1- WHAT CONSTITUTES A PRELIMINARY OBJECTION?

ISSUE NO. 2- WHAT ARE THE ISSUES RAISED BY THE PLAINT DATED 12.10.2021 AND THE DEFENCE DATED 04.12.2021?

ISSUE NO. 3- ARE THERE ANY FACTS AND/OR ISSUES THAT HAVE BEEN ADMITTED AND/OR ARE UNDISPUTED BETWEEN THE PARTIES?

ISSUE NO. 4- IS THE PRELIMINARY OBJECTION DATED 13.10.2022 MERITED?

1. This Court having duly identified the issues for determination as hereinabove, the same will now be discussed and findings made as provided below.

ISSUE NO. 1- WHAT CONSTITUTES A PRELIMINARY OBJECTION?

1. To be able to evaluate this Appeal, the first issue for determination is to understand what a Preliminary Objection is and what it entitles.
2. This Court is guided by the celebrated case of MUKHISA BUSCUITS MANUFACTURING CO. LTD-VERSUS- WESTEND DISTRIBUTORS LIMTED (1969) EA where the Court stated as follows; -

“ 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 preliminary point, may dispose of the suit. Example of 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.

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 facts pleaded by the other side are correct.

It can not be raised if any facts have to be ascertained or if what is sought is the exercise of judicial discretion.”

1. The basic understanding on the above authority is that a Preliminary Objection is one that determines a proceeding purely on a provision of the law based on an assumption that all the facts pleaded therein are correct and/or admitted by the parties.
2. In the event there is a denial by either of the parties in their pleadings or the facts in the pleadings are at variance and require the determination of the Court or the exercise of the Court’s discretion, then such a proceeding can not be determined by way of a Preliminary Objection.
3. Based on the above ingredients, the court will now look at the Appellant’s Preliminary Objection in detailed.

ISSUE NO. 1- WHAT ARE THE ISSUES RAISED BY THE PLAINT DATED 12.10.2021 AND THE DEFENCE DATED 04.12.2021?

1. The first issue that this Court will discuss is what are the issues pleaded by the parties in their Plant and the Defence.
2. The Respondents who are the Plaintiffs before the Trial Court filed a Plaint dated 12.10.2021 seeking for the following reliefs;-
3. A declaration that the Plaintiffs are the sole, absolute and exclusive owners and/or proprietors of the suit land herein otherwise known as LR.NO.TRANSMARA/OLDANYATI/128 measuring approximately 63.04 Hectares as appears on the annexed map herein.
4. Permanent injunction restraining the Defendants herein, their agents, servants and/or employees from trespassing and/or interfering with the suit land or the Plaintiff’s activities over the suit land and/or expanding their occupation over LR.NO.TRANSMARA/OLDANYATI/128 in any manner whatsoever and/or howsoever.
5. Mesne profit.
6. Eviction Order evicting the Defendants, their agents and/or anybody claiming through them, from the suit land.
7. Costs of the suit.
8. Any such further and/or other relief as the Honourable Court may deem fit and expedient so to grant.
9. This particular Plaint dated 12.10.2021 was served on the 1^st to 3^rd Defendants which included the Appellant who was named the 1^st Defendants.
10. On the 04.12.2021, the 1^st Defendant who is also the Appellant in the present Appeal filed his Statement of Defence while the 3^rd Defendant filed his Statement of Defence on the 03.11.2021.
11. For the purposes of this Appeal, the pleading that should be considered is the Appellant’s Defence dated 04.12.2021.
12. In the Statement of Defence dated 04.12.20221 filed by the Appellant, the pleadings show that he denied the averments contained in the Plaint dated 12.10.2021 and sought to have the same dismissed with costs.
13. Based on the Plaint dated 12.10.2021 and the Defence dated 04.12.2021, it is clear that a number of issues had been placed before the Trial Court which included the ownership and actual size of the property known as LR.NO.TRANSMARA/OLDANYATI/128, whether or not the 1^st Defendant who is the owner of the property known as LR.NO.TRANSMARA/OLDANYATI/267 had encroached into the property known as LR.NO.TRANSMARA/OLDANYATI/128, whether or not there was an alteration of boundaries demarcated by the Land Adjudication Committee during the Adjudication exercise, whether or not there is a boundary disputes between the Respondents’ property known as LR.NO.TRANSMARA/OLDANYATI/128 and the Appellant’s property known as LR.NO.TRANSMARA/OLDANYATI/267 and the other Defendants properties  and lastly whether or not the 1^st to 3^rd Defendants should be evicted from their areas of occupation in the event they are within the property known as LR.NO.TRANSMARA/OLDANYATI/128.
14. In essence, it is clear that the Pleadings filed by the parties before the Trial Court raise various issues of fact and law that require to be determined therein.

ISSUE NO. 2- ARE THERE ANY FACTS AND/OR ISSUES THAT HAVE BEEN ADMITTED AND/OR ARE UNDISPUTED BETWEEN THE PARTIES?

1. The other aspect for consideration in a Preliminary Objection is whether the facts in the substantive pleadings have been admitted and/or are not contested.
2. According to the Plaint dated 12.10.2021, the Respondents herein pleaded that they are the registered owners of the property known as LR.NO.TRANSMARA/OLDANYATI/128.
3. The Respondents categorically stated that by virtue of their registration, the law permits them to have exclusive occupation and use of the property known as LR.NO.TRANSMARA/OLDANYATI/128.
4. The Respondents pleaded that the Appellant and well as the 2^nd and 3^rd Defendants before the Trial Court have encroached and/or trespassed into the property known as LR.NO.TRANSMARA/OLDANYATI/128 and interfered with their quite possession and ownership therein.
5. It is on the basis of this encroachment and/or trespass that the Respondents are seeking the prayers outlined in their Plaint dated 12.10.2021.
6. On the other hand, the Appellant in his Statement of Defence dated 04.12.2021 denied the Respondents facts as pleaded in their Plaint dated 12.10.2021.
7. The Appellant pleaded under Paragraph 8 of the Statement of Defence dated 04.12.2021 that all the properties were demarcated by the Oldanyati Adjudication Committee and every person given his portion of land.
8. The Appellant stated that each property had a corresponding map which demarcate the land to be occupied by the person registered in the title thereof.
9. So far, the said Maps created during the Adjudication exercise have never been altered and everyone should be able to identify the location of his property.
10. The Appellant therefore denied any acts or trespass and/or encroachment onto the Respondents property known as LR.NO.TRANSMARA/OLDANYATI/128 and sought the Plaint dated 12.10.2021 to be dismissed with costs.
11. The Court’s understanding of the facts pleaded by the Respondents and the Appellant is that only the ownership of the properties known as LR.NO.TRANSMARA/OLDANYATI/128 and LR.NO.TRANSMARA/OLDANYATI/267 have been admitted.
12. The rest of the facts pleaded by the Respondents in their Plaint dated 12.10.2021 have been specifically and categorically denied by the Appellant in his Statement of Defence dated 04.12.2021 including the reliefs sought by the Respondents.
13. In essence, the facts pleaded by the Respondents and the Appellant before the Trial Court are at variance and can only be ascertained by a hearing before the Trial Court.

ISSUE NO. 4- IS THE PRELIMINARY OBJECTION DATED 13.10.2022 MERITED?

1. The last issue for determination is whether the Appellant’s Preliminary Objection 13.10.2022 was merited or not.
2. The Appellant’s Preliminary Objection dated 13.10.2022 was based on the provisions of Section 18 (2) and 19 of the Land Registration Act, No 3 of 2012.
3. Section 18 (2) of the Land Registration Act, No. 3 of 2012 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”.

1. In addition to the provisions of Section 18 (2) of the Land Registration Act, No. 3 of 2012, the Court has also looked at the provisions of Section 19 of the Land Registration Act, No.3 of 2012 and takes judicial notice that the same deals with fixed boundaries.
2. Nevertheless, Section 19 of the Land Registration Act, No. 3 of 2012 can not be of assistance to the Appellant herein because all the titles held by the parties are created under general boundaries and are not beaconed as envisaged in fixed boundaries.
3. Turning back to the provisions of Section 18 (2) of the Land Registration Act, No.3 of 2012, the interpretation of this Court is that this particular proviso does not deny any Court the jurisdiction to hear a boundary dispute.
4. The Court’s interpretation of Section 18 (2) of the Land Registration Act, No. 3 of 2012 is that the Courts should not entertain any action and/or dispute relating to a boundary between registered properties until and unless the concerned Land Registrar has determined such boundaries first.
5. In other words, the Statutes provides for an internal dispute resolution mechanism of resolving boundary disputes between registered owners through the Land Registrars before one can institute a proceeding before a Court of law.
6. Be as it may, as appertains the Appellant’s Preliminary Objection, it is clear from the discussion in Issue No. 2 and 3 that the issues raised by the Respondents are not related to a boundary dispute but are issues of actual occupation, use and eviction of the Appellant and the other Defendants.
7. The re-establishment of the boundaries between the Respondents property known as LR.NO.TRANSMARA/OLDANYATI/128 and the Appellant’s property known as LR.NO.TRANSMARA/OLDANYATI/267 will only assist in defining the actual size of the properties but will not resolve the issue of eviction orders and/or the prayer for mesne profit that have been sought for in the Plaint dated 12.10.2021.
8. In addition to the above, facts pleaded by the parties before the Trial Court are at variance with each other and therefore the Trial Court must allow the parties therein to ventilate and produce their evidence so that a fair and just determination can be arrived at.

CONCLUSION

1. In conclusion therefore, this Court is of the considered finding that the Preliminary Objection dated 13.10.2022 is misplaced, not merited and/or can not meet the threshold required by law to be allowed.
2. In essence, the Court hereby makes the following Orders are relates to the Memorandum of Appeal dated 11.04.2023; -
3. THE MEMORANDUM OF APPEAL DATED 11.04.2023 IS HEREBY DISMISSED.
4. THE RULING AND DECREE OF THE HONOURABLE WILSON. KITUR PRONOUNCED ON THE 22.03.2023 IN THE PROCEEDINGS KNOWN AS KILGORIS SPM ELC CASE NO. E058 OF 2021 IS UPHELD.
5. THE APPELLANT WILL BEAR THE COSTS OF THIS APPEAL.

IN THE PRESENT OF:

COURT ASSISTANT:MR NGENO

ADVOCATE FOR THE APPLICANT/RESPONDENT: N/A

ADVOCATE FOR THE RESPONDENT/APPLICANT: MR SHIRA FOR 1^ST AND 2^ND RESPONDENTS