(Being an appeal from the ruling and order of SPM Hon C. A Kutwa delivered on 15th May 2022 in ITEN MCELC/013/2024)
Introduction
1. By a plaint dated 18th March, 2024 the plaintiff, now appellant, instituted a suit in the lower court to wit Iten PMC ELC Case No. E013 of 2024 seeking judgment against the defendants, now respondents, for a declaration that land parcel number Lelan Kaptalamwa/88, hereinafter referred to as the suit property, is the property of the late Kimaiyo Chepkilot; a declaration that the defendants are trespassers on 6.3 acres of the suit property; a permanent injunction to restrain the defendants, their agents, servants, employees, proxies and/or assigns from subdividing, selling, trespassing, encroaching, grabbing or in any other manner whatsoever dealing with the suit property; general damages for trespass; costs of the suit.
2. The suit is premised on the grounds that the suit property belongs to Kimaiyo Chepkilot (deceased); that the defendants have trespassed into the suit property thereby interfering with the plaintiff’s quiet and peaceful enjoyment of the suit property.
3. Simultaneously with the plaint, the plaintiff filed a notice of motion of an even date seeking an order of temporary injunction to restrain the defendants from dealing and/or interfering with the suit property pending the hearing and determination of the application and the suit. The plaintiff also sought an order directing the Land Surveyor and the Land Registrar, Elgeyo Marakwet County, to visit the suit property and another property, Lelan/Kaptalamwa /258 for the purpose of demarcating and fixing the boundary between two properties and for purpose of establishing the extent of trespass, if any.
4. The application was premised on the ground that the defendants had severally interfered with the boundary of the suit property thereby illegally excising 6.3 acres from the suit property; that the defendants are unlawfully laying claim to the suit property necessitating determination of the question of ownership of the suit property on priority basis.
5. Explaining that the orders are meant to conclusively determine the boundary dispute by the relevant authorities, the plaintiff deponed that it was in the interest of justice that the orders be granted because unless the orders are granted, he might suffer irreparable loss and damage.
6. It was the plaintiff’s case that he had a prima facie case with overwhelming chance of success and that the balance of convenience tilted in his favour.
7. The defendants did not file a defence to the suit but filed a replying affidavit and notice of preliminary objection, dated 27th March, 2024. In the replying affidavit sworn on 27th March, 2024 the defendants deponed that parcel number Lelan/Kaptalamwa/258 belongs to their father, Chemwok Chemitei, deceased; that they cannot be sued in respect of land parcel number Lelan/Kaptalamwa/258 as they are not the legal representatives of the estate of their father comprised in that land parcel and that the court does not determine boundary disputes as it is the mandate of the Land Registrar.
8. The defendants denied having encroached into the suit property or having altered the boundary to the suit property and deponed that the boundaries of the suit property were established in 1970s and that they had been utilizing their father’s land.
9. The defendants further contended that the application by the plaintiff/applicant offends Section 18 of the Land Registration Act, No.3 of 2012 and urged the court to dismiss it for want of jurisdiction and locus standi.
10. Through the preliminary objection, the defendants prayed that the plaintiff’s suit be dismissed with costs on the following grounds;
a) The court lacks jurisdiction to hear and determine the suit as it offends the provisions of Regulation 40 and 41 of the Land Registration General Regulations 2017 and Section 18 of the Land Registration Act, No.3 of 2012;
b) The suit is untenable in law, frivolous, vexatious, unmeritorious, and baseless as the defendants lack locus standi to be sued as they are not the legal representatives of the estate of their deceased father hence the suit is an abuse of the court process;
c) That the suit is frivolous, vexatious, defective and should be struck off as the same is premature.
11. The application and the preliminary objection were disposed off together through written submissions.
12. In his ruling delivered on 15th May, 2024 the trial magistrate upheld the preliminary objection by the defendant. In so doing, the learned trial magistrate held/stated: -
“...The single issue for determination is whether the preliminary objection by the respondent has merit and should be allowed...even if this court were to hear and determine this matter, it will still require the input of the Land Registrar....I find that ground (1) and (2) of the preliminary objection is well founded. It is upheld with the result that the application dated 18/3/2024 together with the suit against the defendants is hereby struck out with costs to the defendants.”
13. Dissatisfied with the decision of the trial magistrate, the plaintiff appealed to this court on grounds that the learned trial magistrate erred by: -
i) Finding the preliminary objection merited despite the plaintiff’s issues being a blend of facts and law, warranting consideration on merits rather than dismissal;
ii) Striking out the appellant’s plaint, an action that was draconian and excessive, thereby denying the appellant the opportunity to be heard;
iii) Adjudicating the substantive boundary dispute, despite the appellant’s request for the matter to be referred to the Land Registrar, to determine the extent of trespass;
iv) Disregarding binding precedent specifically Civil Appeal No.113 of 2018; Menkar Limited v. Ratilal Ghela Samat Shah & 2 others (2019) e KLR, thus deviating from established legal principles;
v) Rejecting jurisdiction, despite Section 13(1)(a) of the Environment and Land Court Act explicitly granting the court authority to adjudicate disputes related to various matters, including environmental planning, land use planning, and boundaries thereby impeding access to justice;
vi) Concluding lack of jurisdiction over the lower court suit, as the properties in question had been surveyed and boundary beacons installed and fixed, fulfilling the requirements under Section 18(3) and 19(2) of the Land Registration Act, No.3 of 2012, thereby indicating the court’s authority to resolve the dispute.
14. The appellant seeks the following orders/reliefs: -
a) This appeal be allowed;
b) The ruling and all the consequential orders made in Iten MCELC/E013/2024 Paul Koskei Maiyo v. Philip Chemwok and Erick Chemwok) be and are hereby set aside;
c) The suit be and is hereby remanded back to the trial court under Section 78(1)(b)-(e) of the Civil Procedure Act;
d) An order is hereby issued instructing the Elgeyo Marakwet County Land Registrar to conduct a survey of land parcels Lelan/Kaptalamwa/88 and Lelan/Kaptalamwa/258, ensuring the accurate delineation of their boundaries and promptly submitting a report to the trial court within 60 days.
e) Subject to the report in order (d) above, parties be at liberty to prosecute the remainder of the claims in the suit in the lower court
f) Costs of the Appeal.
Appellant’s submissions
15. In the appellant written submissions dated 20th December 2024, the appellant gives a background of the appeal and identifies two issues for determination. These are;
1) Whether the learned trial magistrate erred in law and fact by upholding the preliminary objection and striking out the appellant’s plaint, thereby denying the appellant the right to a fair hearing and access to justice.
2) Whether the learned trial Magistrate erred in his interpretation and exercise of jurisdiction, including failing to refer the boundary dispute to the Land Registrar as required by law and disregarding binding statutory and judicial precedents.
16. On the first issue it is submitted that a preliminary objection can only be sustained where there is a pure point of law as established in the case of Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696. In the instant case, a blend of facts and legal points were raised. The issues of trespass and boundary disputes raised involved factual determinations that could only be addressed by evidence at trial. He faults the learned trial magistrate for striking out the plaint by considering the case as a purely legal issue.
17. He further submits that striking out a pleading is a draconian remedy that should be applied with caution. He made reference to the case of DT Dobie & Company (Kenya) Ltd v Joseph Mbaria Muchina & Another (1980) eklr and further submits that having been deprived of a fair chance to have his case heard, his constitutional rights to a fair trial and access to justice were violated.
18. On the second issue, he submits that the learned trial magistrate failed to refer the boundary dispute to the Land Registrar as mandated by the law. He relied on the case of Azzuri Limited v Pink Properties Limited (2018) eklr and further submits that the learned trial Magistrate disregarded a statutory process and binding judicial precedents usurping a role meant to be executed by a statutory body. He made reference to the case of Menkar Limited v Ratilal Ghela Samat Shah & 2 others (2019) eklr.
Respondents submissions
19. In the respondents’ submissions filed on 13th January, 2025 the respondent framed two issues for the court’s determination. These are: -
i) Whether the learned trial magistrate erred by striking out the suit for lack of jurisdiction as the suit offended Regulations 40 and 41 of the Land Registration (General) Regulations 2017 and Section 18 Land Registration Act No.3 of 2012;
ii) Whether the learned trial magistrate erred by striking out the suit in that it was untenable in law as the defendants/respondents herein lacked locus standi to be sued.
20. On the first issue, the respondents submit that the appellant’s suit was clearly a boundary dispute where the plaintiff/applicant alleges that the respondents have encroached into 6.3 acres of land parcel Lelan /Kaptalamwa/88. Based on the provisions of Section 18(2) of the Land Registration Act and Regulation 40 and 41 of the Land Registration (General) Regulations 2017, which sections of the law the respondents fault the plaintiff/appellant of having failed to comply with, the respondents submits that the suit by the appellant was premature and cannot be entertained by the court. The respondents further make reference to the cases of Ali & 2 Others v. Wangombe (Environment and Land case E032 of 2023 (2024) KEELC 4420 (KLR) and Willis Ochola vs. Mary Ndege (Environment and Land Court) Case No.137 of 2015 and maintains that the court lacked jurisdiction to entertain the suit as it involved a boundary dispute which had not been determined by the Land Registrar.
21. On issue 2, the respondents submit that they ought not to have been sued as defendants as they are neither the registered owners of Lelan/Kaptalamwa/258 nor the administrators of the estate of their deceased father comprised in the said property. Based on the cases of Julian Adoyo Ongunga vs. Francis Kiberenge Abano Migori Civil Appeal No.119 of 2015; Otieno vs. Ougo & another (1986-1989)EA 468; Ranjesh Pranjiran Chudasama vs. Sailesh Pranjivan Chudasama (2014)e KLR and Melickzedeck Shem Kamau vs. Beatrice Waithera Maina & 2 others (2020)e KLR, the respondents assert their contention that since they are neither the registered owners of Lelan/Kaptalamwa/258 nor the administrators of their father’s estate comprised in that property, they lacked capacity to be sued as defendants.
Analysis and determination.
22. As pointed out herein above, the plaintiff instituted this suit seeking several reliefs against the defendants for alleged encroachment of parcel number Lelan/Kaptalamwa/88 (the suit property). Among the reliefs sought is a declaration that the defendants are trespassers on 6.3 acres of the suit property and damages for trespass to land.
23. In the main suit, the plaintiff has not made any reference to Lelan/Kaptalamwa/258 in respect of which, through the application for interlocutory reliefs, he intimates that there is a boundary dispute. He merely alleged that the defendants had encroached on the suit property.
24. There is also no indication in the suit that the defendants have been sued as representatives of the estate of the Chemwok Chemitei, deceased.
25. Before the court rightly dismissed the suit on the ground that the defendants had no capacity to be sued in respect of the estate of Chemwok Chemitei, deceased, the court needed to ascertain that the defendants had been sued not in their personal capacity but in the capacity of the estate of their deceased father. That fact is not ascertainable from the pleadings filed in respect of the main suit as it does not make reference to land parcel Lelan/Kaptalamwa/ 258.
26. The defendant did not file a statement of defence indicating that they are occupying land parcel Lelan/Kaptalamwa /258 and not the suit property. In the circumstances, the main suit could not be struck out based on the defendant’s contention that they lacked capacity to be sued.
27. Whereas evidence would be required to prove the alleged encroachment on the suit property, that fact alone does not form a basis of striking out the plaintiff’s suit as the reliefs sought are not limited to determination of a boundary dispute.
28. The foregoing determination notwithstanding, the learned trial magistrate cannot be faulted for denying the plaintiff/respondent the orders sought in the notice of motion. Clearly, the plaintiff departed from his pleadings and introduced issues that were not pleaded in the plaint, particularly, the issue of boundary dispute between Lelan/Kaptalamwa/88 and Kaptalamwa/Lelan/258.
29. It is noteworthy that through the averments and prayers in the notice of motion, the plaintiff applicant implicitly acknowledged that there is a boundary dispute touching on the two properties in respect of which he required the support of the court in getting the Land Registrar to visit the parcels and establish the extent of encroachment if any.
30. By explicitly indicating that he required the input of the Land Registrar in determination of the extent of encroachment on the suit property, Lelan/ Kaptalamwa/88, the plaintiff impliedly acknowledged that there existed a boundary dispute over the two parcels, Lelan/Kaptalamwa/88 and 258 which needed to be determined before his suit could be heard and determined. There is no indication that the plaintiff had sought to have the boundary dispute, if any, which existed over the parcels resolved in accordance with the applicable law and procedures to warrant the court being required to grant an order directing the Land Surveyor and the Land Registrar, Elgeyo Marakwet County to visit the suit property and another property, Lelan/Kaptalamwa/258 for the purpose of demarcating and fixing the boundary between two properties and for purpose of establishing the extent of trespass, if any.
31. In the circumstances, the learned trial magistrate was justified in refusing to grant the orders sought. It was not for the court to assist the plaintiff/applicant fix for evidence in support of his case.
32. The foregoing notwithstanding, on account of the fact that the defendant had not filed any statement of defence raising the issues raised in the replying affidavit and the preliminary objection, it cannot be said that the issue raised in the preliminary objection are issues capable of being determined from the pleadings filed by the parties.
33. The upshot of the foregoing is that the appellant’s appeal partially succeeds in that I set aside the order striking out the suit. The order dismissing the notice of motion dated 18th March 2024 is upheld on the ground that the plaintiff/applicant did not make up a case for being granted the orders sought.
34. Despite the appellant having partially succeeded in his appeal, I decline to award him costs of the appeal, as he largely contributed to the dismissal of his suit by departing from his pleaded case in his application for interlocutory reliefs. Parties shall bear their own cost of the appeal.
35. Orders accordingly.
Dated, signed and delivered at Iten this 10th day of March, 2025
Judgment delivered virtually in the presence of;-
N/A for the appellant
Ms. Koech for the respondent
Court Assistant: Christine