Automated Summary
Key Facts
The case involves a boundary dispute over land parcel North Ugenya/Yenga/49. The plaintiff claimed the defendant trespassed onto his land, causing damages of Kshs.49230/=, and sought an injunction and declaration of ownership. The defendant objected, arguing the court lacked jurisdiction and the matter should first be resolved by the Land Registrar under Section 18 of the Land Registration Act. The court ruled the suit was prematurely filed, as no boundary determination by the Land Registrar had occurred, and struck it out with costs.
Issues
- What orders to make.
- Whether the boundary has been determined by the Land Registrar.
- Whether the suit filed by the Plaintiff is based on a boundary dispute.
- Whether the court has jurisdiction to deal with the matter in view of the provisions of Section 18 of the Land Registration Act No.3 of 2012.
Holdings
- The Defendant's preliminary objection argued the suit was prematurely filed because the Land Registrar had not determined the boundary as required by Section 18 of the Land Registration Act. The Plaintiff countered with a report from the District Surveyor, but the court found no evidence of boundary demarcation by the Land Registrar.
- The court found that the suit filed by the Plaintiff is based on a boundary dispute over land parcel North Ugenya/Yenga/49, as evidenced by the averments in paragraphs 4, 5, and 6 of the plaint, where the Plaintiff accuses the Defendant of trespassing and causing damages.
- The court clarified that the Land Surveyor's report cannot substitute for boundary demarcation by the Land Registrar, as the two offices have distinct legal and administrative mandates under the Land Registration Act.
- The matter was deemed prematurely filed in court before the boundary could be determined by the Land Registrar, violating the law. The suit and motion were struck out with costs as a result.
- The court concluded that no evidence demonstrated the boundary for land parcel North Ugenya/Yenga/49 had been demarcated or settled by the Land Registrar before the suit was filed, emphasizing the legal requirement under Section 18(2) of the Land Registration Act.
Remedies
- The court ordered that the Plaintiff bear the costs of the preliminary objection hearing due to the premature filing of the case.
- The court upheld the Defendant's preliminary objection and struck out the Plaintiff's suit and notice of motion with costs, ruling that the matter was prematurely filed in court before the Land Registrar could determine the boundary as required by law.
Legal Principles
The court applied the procedural requirement under Section 18 of the Land Registration Act No.3 of 2012, which mandates that boundary disputes must first be determined by the Land Registrar before being filed in court. The court emphasized that the Land Registrar and Surveyor have distinct legal mandates, and the surveyor's report cannot substitute the Land Registrar's boundary demarcation.
Cited Statute
Land Registration Act No.3 of 2012
Judge Name
S.M. Kibunja
Passage Text
- c) That the court has considered the rival submissions as summarized in (b) above and the provisions of Section 18 (2) of the Land Registration Act and it is clear that no evidence has been availed to show that the boundary in respect of land parcel North Ugenya/Yenga/49 has ever been demarcated or settled by the Land Registrar before the filing of this suit.
- 7. That in view of the foregoing the Defendant's preliminary objection is hereby upheld. The suit commenced vide the plaint dated 22nd April 2016 and the notice of motion dated 3rd June 2016 are hereby struck out with costs for being filed in court prematurely.
- a) That the averments in paragraph 4, 5 and 6 of the Plaint clearly shows that the suit filed by the Plaintiff against the Defendant is based on a boundary dispute over land parcel North Ugenya/Yenga/49. The Plaintiff accuses the Defendant of trespassing onto the land and stopping the ongoing fencing work and as a result of which he suffered damages which he has particularized at paragraph 7 of the plaint.