Introduction.
The appellant, vide the Memorandum of Appeal dated 8th November 2023, appealed to this court against the ruling of Hon. R.M Ndombi PM in VIHIGA PMC MCEL CASE NO. 38 OF 2022 (herein referred to as the suit).
A brief background of the appeal as can be gathered from the record of appeal, is that the appellant was the plaintiff in the suit and the Respondents the defendants. In the suit the plaintiff had claimed that he is the registered owner of land parcel known as WEST BUNYORE/ITUMBU/413 and the 1st Respondent the registered owner of WEST BUNYORE/ITUMBU/912.
His complainant was that the 1st Respondent had interfered with the boundary features of the common boundary between the two parcels of land. That his efforts to have the boundary corrected have been futile as the 2nd and 3rd Respondents insist that the map is to be corrected to reflect the position on the ground and not vice versa. That the position taken by the 2nd and 3rd Respondents is wrongful. In the suit the applicant therefore sought for the following relief:
- an order that the 2nd and 3rd defendants (respondents herein) do visit and place the boundary at its correct position as per the land adjudication map that subdivided parcel number WEST BUNYORE /ITUMBU/ 413 and 912.
- Cost of the suit.
In response to the plaintiff’s (applicant’s) claim, the 1st respondent filed a notice of preliminary objection dated 23rd January 2023 seeking that the suit be struck out on the grounds that;
- the suit is bad in law for offending the express and mandatory provisions of section 18(2) of the Land Registration Act No, 3 of 2012 which ousts the jurisdiction of the court which provides that the proprietors of registered land with a boundary dispute are obligated to first seek redress or resolution from the Land Registrar before moving or escalating the dispute to this court.
- that the honourable court has no jurisdiction to entertain this suit as its value is more than Kenya Shillings fifteen million (Ksh 15,000,000/=) by virtue of Section 7 of the Magistrate Court Act, 2015.
The record of appeal shows that the preliminary objection was heard by the trial court which, vide the ruling delivered on the 5th October 2023, found that the preliminary objection had merit and upheld it thereby striking out the appellant’s suit with costs to the 1st Respondent.
The appeal
Aggrieved by the ruling dated 5th October 2023 the appellant preferred the present appeal on the grounds that; -
- the learned Magistrate erred in law by upholding the preliminary objection by the 1st Respondent on the grounds that the suit was prematurely filed before court without giving regard to the fact that already the County Surveyor had arbitrated over the issue through its report of 30th March 2022 and hence its mandate was functus officio on the matter.
- the Learned Magistrate erred in law in finding that the reliefs sought in court were in the province of the County Survey office and hence the same was premature before court.
- the learned Magistrate erred in law by ignoring the appellant’s written submissions and his pleadings before court.
- the learned Magistrate otherwise misdirected herself in extraneous issues which did to constitute the preliminary objection.
The appellant seeks for orders that the appeal be allowed by setting aside the ruling of 5/10/2023 by the trial court and reinstating the appellant’s suit to hearing. Secondly that the suit in the lower court be transferred to a different court of similar jurisdiction other than the court that delivered the ruling for hearing and final determination. The appellant also seeks for costs of the appeal.
Directions were given on 6th May 2024 that the appeal be canvassed by way of written submissions and time lines set for filing and service of the written submissions. On 18/9/2024, the appellant requested for 7 more days to file the submissions. On 13/11/2024, parties were added another 14 more days to file and serve their respective written submissions. None of the parties filed submissions.
Issues for determination
From the grounds of appeal presented and the record of appeal generally, the substantive issue that arises for determination is whether or not the trial court had jurisdiction to entertain the suit.
Analysis and determination
This being a first appeal, the court reminds itself of the duty to re-examine and analyze the evidence placed before the trial court with a view to arrive at its own independent conclusion as was held in Selle & another vs Associated Motor Boat Company Ltd & Another (1968) IEA 123) that a court handling a first appeal is not necessarily bound to accept the findings of fact and law by the court below but has a duty to re-examine the evidence placed before the trial court.
In paragraph 8 of the plaint dated 2nd December 2022 the appellant pleaded that he had made efforts to have the boundary corrected so that it could tally with the map but that the said efforts had been unsuccessful as the Land Surveyor and the Land Registrar Vihiga County had arrived at a conclusion that the map is to be corrected to reflect what is on the ground. In paragraph 9 he pleaded that the decision of the Land Registrar and Land Surveyor was wrong in that the current position of the boundary differs with the boundary placed and map done during land adjudication which had been done on the basis of existing boundaries then. The appellant then sought for an order that the Land Registrar and Surveyor visit the site and place the boundary at the correct place as per the land adjudication map that sub-divided land parcel number WEST BUNYORE/ITUMBU/413 and WEST BYNYORE/ITUMBU/912.
The proceedings in the record of appeal show that part of the appellant’s response to the preliminary objection was that the documents annexed to the plaintiff’s list of documents included reports by the Land Registrar and the County Surveyor which confirm that the matter had escalated beyond the Land Registrar and Land Surveyor. That what the plaintiff was seeking from the court was that the court orders the Land Registrar and surveyor to return the boundaries to their original positions as per the land adjudication map.
The Reports by the Land Registrar and Surveyor are on pages 8-12 of the record of appeal. The reports confirm that indeed the dispute had been handled by the Land Registrar and Surveyor who took evidence and gave their recommendations. The report titled “Report on boundary dispute determination between parcel of land comprised in L. R. NO. WEST BUNYORE/ITUMBU/413 & 912” signed by Langat Hillary Kipngetich, Land Registrar, Vihiga, is dated 30th March 2022. The report of the County Surveyor was also dated 30th March 2022, signed by Christopher K. Tuwei. To the report were annexed two sketch drawings that show the position of the boundary on the ground and the position of the boundary on the map.
While the 1st Respondent’s case in the preliminary objection was that under the provisions of section 18 (2) of the Land Registration Act and the Magistrate Courts Act, the trial court did not have jurisdiction to entertain the suit, the appellant’s case was that the surveyor had already visited the site and filed a report and hence section 18 of the Land Registration Act had been complied with.
Section 18 of the Land Registration Act provides as follows;
“(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 boundaries and 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 situation 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.”
Section 19 of the Act provides for fixed boundaries and section 20 for maintaining of the boundaries.
It is clear that the dispute in the matter before the trial court was a boundary dispute as provided for under section 18 of the Act. It is also evident that the appellant rightly lodged the dispute with the Land Registrar who together with the Surveyor handled the dispute and made a determination by recommending that the map be amended to reflect the boundaries as they exist on the ground for reason that the said area registration section has rampant apparent errors on the map. The Surveyor also recommended that the boundaries on the ground be maintained since they had been in existence for a long time.
It is clear from the contents of the plaint that the appellant was not satisfied with the determination of the Land Registrar.
Under Regulation 40 (6) of the Land Registration (General) Regulations 2017 the only jurisdiction that the court has in boundary disputes is appellate and not original. It provides as follows.
“Any party aggrieved by the decision of the Registrar made under paragraph (5) may, within 30 days of the date of notification, appeal the decision to the court”.
Instead of preferring an appeal to this court against the Land Registrar’s determination, the appellant filed the suit the subject matter of the appeal. The original jurisdiction of the court in boundary disputes is divested by section 18 (2).
In Keremet Ole Tempe (Suing on behalf of Loseet Ole Rorua - Deceased) v Land Registrar, Kajiado & another; County Government of Kajiadoi & 10 others (Interested Parties) (Environment & Land Case E001 of 2021) [2024] KEELC 4949 (KLR) the court held that the only power that the court has in boundary disputes is appellate. That power is to be found in Regulation 40 (6) of the Land Registration (General) Regulations, 2017.
As held in the case of the Owners of the Motor Vessel “Lilian S” vs Caltex Oil (Kenya) Ltd (1989) eKLR jurisdiction is everything and without it, a court has no power to make one more step irrespective of the nature or strength of the evidence in the parties’ possession.
In the premises I find that the trial court did not therefore have jurisdiction and rightly held so.
I find no reason to interfere with the findings and decision of the trial court. The appeal is therefore hereby dismissed, each party to bear own costs of the appeal.
Orders accordingly.
Judgement dated and signed at Vihiga and delivered this 14th day of February, 2025 virtually through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Ajevi: Court Assistant.
Chitwah for the Appellant.
No appearance for the Respondents.