Introduction
1. Before this Honourable Court for determination is a Notice of Preliminary Objection dated 18th March 2026, filed by the 3rd Defendant, Solomon Lemagunia. The Objection challenges the legal competence of the Plaintiffs' suit, specifically the Plaint dated 11th November 2025 and the accompanying application of the same date, seeking interlocutory orders.
2. The Plaintiffs, in their capacity as legal representatives of the estate of the late Peter Orumoi Ole Metuo, claim ownership of the parcel of land known as Title No. Loitokitok/Olkaria/256. They allege that the 1st to 12th Defendants have engaged in acts of trespass upon the suit property. The Plaintiffs further aver that the boundary between their property and the adjacent parcel, Title No. Loitokitok/Olkaria/257 (owned by the 13th Defendant), is undetermined. Accordingly, the Plaintiffs seek an order of permanent injunction against the 1st to 12th Defendants and a mandatory order compelling the 14th Defendant, the Land Registrar for Kajiado County, to visit the site and determine the boundaries.
3. The 3rd Defendant, by way of the instant Notice of Preliminary Objection, moves this Court to strike out the suit and the application. The 3rd Defendant asserts that this Court lacks the requisite jurisdiction to hear and determine this suit, citing Section 18(2) of the Land Registration Act, 2012, which reserves the determination of boundary disputes to the Land Registrar.
4. It is contended that the suit is premature as the process for boundary determination had already been invoked by the Plaintiffs before the Land Registrar. The 3rd Defendant argues that the court's intervention is not only unnecessary but also infringes upon the statutory functions of the Land Registrar. The 3rd Defendant maintains that the suit is an abuse of court process because it seeks to obtain final, substantive reliefs; namely, the determination of boundaries and a permanent injunction, at an interlocutory stage, which contradicts settled legal precedents prohibiting the granting of final orders before a full trial.
5. The 3rd Defendant highlights a fundamental contradiction in the pleadings: the Plaintiffs plead a cause of action for trespass and injunction while simultaneously admitting that the boundary of the property is not yet ascertained. Consequently, the 3rd Defendant argues that the trespass claim cannot be sustained in the absence of a verified boundary.
6. The 3rd Defendant consequently prays that the suit be struck out in its entirety with costs, arguing that it is incompetent and bad in law.
7. The parties made their respective submissions regarding the Notice of Preliminary Objection orally. The said submissions which form part of the record of this court have been duly considered in the writing of this ruling.
Issues for determination
8. Having considered the Notice of Preliminary Objection dated 18th March 2026, the pleadings, and the rival submissions, the Court finds that the issue arising for determination is whether the said preliminary objection is merited.
Analysis and Determination
9. The starting point is the nature of a preliminary objection. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Law JA stated that a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication from the pleadings and which, if successfully argued, may dispose of the suit. He further emphasized that it must be argued on the assumption that all facts pleaded by the opposing party are correct.
10. In the present matter, the objection is anchored on jurisdiction under Section 18(2) of the Land Registration Act and the legal effect of the Plaintiffs’ own admissions that the boundary between the suit parcels is undetermined. This raises a pure point of law capable of disposing of the suit without delving into contested facts, and it is therefore properly taken.
11. Jurisdiction is fundamental and without it a court must down its tools. 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. Without it, a court has no power to make one more step.”
12. The applicable statutory framework is Section 18(2) of the Land Registration Act, 2012 which provides in mandatory terms that:
“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.”
The language of the provision is prohibitive and leaves no room for discretion where the dispute is one concerning unascertained boundaries.
13. From the Plaint, it is expressly pleaded that Title No. Loitokitok/Olkaria/256 and Title No. Loitokitok/Olkaria/257 share a common boundary that has never been determined, and that uncertainty has made it difficult to ascertain the extent of alleged trespass. The Plaintiffs further acknowledge that they had already moved the Land Registrar to determine the boundary and that administrative steps are underway but allegedly obstructed. They also seek a substantive order compelling the Land Registrar to visit the land and determine the boundary. These pleadings constitute a clear admission that the boundary dispute is unresolved and is the foundation of the entire claim.
14. The legal effect of such admission is that the Court is being invited to engage, directly, in a boundary determination exercise that is statutorily reserved for the Land Registrar in the first instance. The statutory scheme under Section 18 of the Land Registration Act is deliberate in allocating primary jurisdiction over boundary ascertainment to administrative mechanisms before any court intervention. Where the boundary is not yet determined, the Court is expressly barred from entertaining any claim whose resolution depends on such determination. It follows that the trespass claim pleaded herein is premature, as trespass presupposes certainty of ownership boundaries and identifiable encroachment. Without a defined boundary, the Court cannot establish whether any alleged entry occurred within the Plaintiffs’ land or otherwise.
15. 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.”
16. The Plaint further discloses a fundamental procedural issue arising from the nature of the relief sought against the Land Registrar. The Plaintiffs seek an order compelling the Land Registrar to visit the suit property and determine the boundary. Although framed within a plaint in an ordinary civil suit, the substance of this relief is a command to a public officer to perform a statutory duty. The law is settled that in determining the character of a relief, the Court must look at its substance rather than its form. In essence, the order sought is one of mandamus, which is a judicial review remedy used to compel performance of a public duty.
17. In Republic v Kenya National Examinations Council ex parte Gathenji & Others [1997] eKLR, the Court of Appeal stated that:
“mandamus is the appropriate remedy for compelling a person or body to perform a public duty imposed by law.”
18. The effect of the Plaintiffs’ prayer is therefore to invoke judicial review jurisdiction within an ordinary civil suit, without following the procedural framework governing such relief. This further demonstrates the procedural impropriety of the claim.
19. The presence of the Land Registrar and the Attorney General as parties does not cure the jurisdictional defect. Jurisdiction cannot be conferred by consent, pleading, or joinder of parties. As stated in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, a court’s jurisdiction flows from the Constitution or legislation and cannot be assumed or conferred by parties’. This Court remains bound by the express limitation imposed by Section 18(2) of the Land Registration Act.
20. 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.”
21. In light of the foregoing, the Court finds that the dispute presented is fundamentally a boundary dispute within the meaning of Section 18(2) of the Land Registration Act, 2012. The Plaintiffs’ own pleadings confirm that the boundary is undetermined and that administrative processes are either ongoing or have been obstructed. This Court is therefore divested of jurisdiction at this stage. The claim for trespass is premature, as it depends entirely on a boundary that has not been legally ascertained. The injunctive and damages claims are equally unsustainable in the absence of a defined boundary.
22. Further, the order sought against the Land Registrar is, in substance, a judicial review remedy in the nature of mandamus, improperly embedded within a plaint instead of being pursued through the appropriate procedural framework. This reinforces the conclusion that the suit is not properly constituted, as it conflates private law remedies with public law reliefs in a manner inconsistent with established procedure.
23. Accordingly, the Plaintiff’s instant suit is struck out for want of jurisdiction. The Plaintiffs are at liberty, if so advised, to pursue boundary determination before the Land Registrar in accordance with the law.
24. The costs of the suit and the objection are awarded to the 2nd, 3rd, and 5th to 12th Defendants.
It is so ordered.
Dated, Signed and Delivered Virtually this 21st Day of May, 2026.
M.D. MWANGI
JUDGE
In the virtual presence of:
Mr. Ahomo h/b for Mr. Amuga for the Plaintiffs
Mr. Pareno for the 2nd, & 4th – 12th Defendants
Mr. Sakimpa for the 3rd Defendant
Court Assistant: Alex
M.D. MWANGI
JUDGE