Donald Scaver Mwakio v Kenya National Highways Authority [2021] KEELC 2820 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENTAL AND LAND COURT

AT MOMBASA

ELC NO 161 OF 2019

DONALD SCAVER MWAKIO...............................................PLAINTIFFS

VERSUS

KENYA NATIONAL HIGHWAYS AUTHORITY................DEFENDANT

RULING

1. By a Notice of Motion dated 6th September, 2019, and filed on even date, the plaintiff/applicant seeks an interlocutory injunction restraining the defendant by itself, its servants and or agents from pulling down the fence and or encroaching upon and or interfering, in any manner whatsoever with all that parcel of land known as Title Number Werugha/Wundanyi/1707 and Title Number Werugha/Wundanyi/1008 (herein after referred to as the suit properties) pending the hearing and determination of the suit herein. The application is grounded on the grounds in the body of the application and the contents of a supporting affidavit of Donald Scaver Mwakio, the plaintiff sworn on 6th September, 2019. The applicant’s case is that he is the duly appointed administrator of the estate of Msaga Mwakio (deceased). The plaintiff avers that he is the registered proprietor and entitled to possession of the suit property known as Title Number Werugha/Wundanyi/1707 while the deceased was the registered proprietor of Title Number Werugha/Wundanyi/1008. That Title Number Werugha/ Wundanyi/1008 has, at the instance of the plaintiff in his capacity as the administrator of the estate of the deceased, been subjected to the process of subdivision into parcel Numbers 1704, 1705,1706 and 1707, with the parcel Number 1707 being registered in the plaintiff’s name for purposes of distributing the estate of the deceased to the heirs and beneficiaries. The plaintiff avers that on diverse dates in March, August and 4th/5th September, 2019, the defendant’s servants, agents and or employees verbally threatened to pull down and to uproot the perimeter fence surrounding the suit premises allegedly on the ground that the same was falling within the road reserve. That the alleged area encroaching the road reserve measures approximately 400 square meters or thereabouts with an approximate market value of kshs. 2 million or thereabouts.

2. The application is opposed by the defendant through a Replying Affidavit sworn by Kipkemoi Rono on 29th October, 2019 in which he has deposed that the Respondent’s staff carried out measurement on the Mwatate-Wundanyi Road (B56) and deduced from the survey plan (Registry Index Map) of the area the boundary of parcel of land Werugha/Wundanyi/1707 encroached onto the road reserve by approximately 3. 5 meters. That the plaintiff was informed of the encroachment on the road reserve and advised to rectify the same. The defendant avers that its staff have not removed the encroaching fence since a quit notice is yet to be issued as required. That it is clear that the Respondent has not taken any adverse action against the applicant. It is also the defendant’s contention that this is a boundary dispute and under Section 18 (2) of the Land Registration Act, the court lacks jurisdiction to hear this claim.

3. The application has canvassed by way of written submissions. The plaintiff filed his written submissions dated 28 October, 2019 on 29th October 2019 through Lumatere Muchai & Company Advocates while the defendant filed theirs on the same date through G.A Okumu & Co. Advocates. The plaintiff submitted that he was satisfied the requirements for the issuance of injunction as set down in Giella –v- Cassman Brown (1973) EA358. That the Applicant has annexed title deeds and certificate of confirmation of grant as proof that he is the lawful owner of the suit land and therefore has proved that he has a prima facie case with a probability of success. It is submitted that the Applicant is likely to suffer irreparable injury which cannot be adequately compensated in damages and that the balance of convenience tilts in his favour. The plaintiff therefore urged the court to grant the orders sought.

4. The Respondent on its part maintains that the issue in dispute is a boundary dispute and under Section 18(2) of the Land Registration Act, the court lacks jurisdiction as the duty to fix boundaries is vested in the Land Registrar under Section 19 of the Land Registration Act. That for want of jurisdiction, the court cannot determine whether there is a prima facie case that the applicant has established. The defendant’s submission is that the plaintiff has failed to establish any legal rights that have been infringed and the orders sought should not be granted. The defendant’s counsel relied on the case of Joyce Mukuhi Njenga –v- Equity  Building Society & 2 Others [2005] eKLR and Board of Governors Afraha High School & Another –v- Kenya Commercial Bank [2004]. It was further submitted that the applicant has not demonstrated any loss that he will suffer that cannot be compensated by an award of damages, and that the balance of convenience is in favour of the Respondent.

5. I have considered the application and the submissions made. The issues for determination are whether or not the court has jurisdiction to determine the matter and if so, whether the plaintiff is entitled to the orders sought.

6. It is the defendant’s submission that the issue in dispute is a boundary dispute and that under Section 18 (2) of the Land Registration Act, the court lacks jurisdiction in the matter. Section 18 of the Land Registration Act. No. 3 of 2012 provides as follows:

“18 (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 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. ”

7. Further Section 19 of the same Act provides as follows:

“19 (1) If the Registrar considers it desirable to indicate on a filed plan approved by the office or authority responsible for the survey of land, or otherwise to define in the register, the precise position of the boundaries of a parcel or any part thereof, or if an interested person has made an application to the Registrar, the Registrar shall give Notice to the owners and occupiers of the land adjoining the boundaries in question of the intention to ascertain and fix the boundaries.

(2) The Registrar shall, after giving all persons appearing in the register an opportunity of being heard, cause to be defined by survey, the precise position of the boundaries in question, file a plan containing the necessary particulars and make a note in the register that the boundaries have been fixed, and the plan shall be deemed to accurately define the boundaries of the parcel.

(3) Where the dimensions and boundaries of a parcel are defined by reference to a plan verified by the office or authority responsible for the survey of land, a note shall be made in the register, and the parcel shall be deemed to have had its boundaries fixed under this Section.”

8. In the plaint and the application, the plaintiff has pleaded that the defendant has threatened to pull down and to uproot the perimeter fence surrounding the suit premises an allegation that the same has encroached on the road reserve. In paragraph 9, the plaintiff pleaded that “despite clear boundaries as depicted by the relevant cadastral map and establishing the boundaries and ownership of the suit premises as rightly vesting in the plaintiff, and inspite of the plaintiff’s protests, the defendant, its servants and or agent and or employees are bent on pulling down and uprooting the perimeter fencing erected around the suit premises.” Among the prayers sought by the plaintiff in the plaint is an order of injunction restraining the defendant from pulling down the said perimeter fence and or encroaching upon and or interfering in any manner whatsoever with the suit premises. In their statement of defence, the defendant avers and maintains that the plaintiff has encroached on a road reserve. From the pleadings, it is clear to me that the issue herein is boundary dispute. The plaintiff therefore ought to have given the Land Registrar the chance to address the boundary complaint raised in the pleadings herein in line with Section 18 and 19 of the Land Registration Act. In my view, the Plaintiff/Applicant jumped the gun by rushing to court instead of following the above mentioned provisions of the law. In the circumstances, I am in agreement with the defendant’s submission that this court lacks jurisdiction to entertain the suit, which to me is a boundary dispute.

9. I therefore hold and find the application and the suit are not sustainable and I hereby proceed to strike out the plaintiff’s suit and the application with costs to the defendant.

10. It is so ordered.

DATED SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 14TH DAY OF JUNE, 2021.

............................

C.K. YANO

JUDGE

IN THE PRESENCE OF:

Ms. Okumu for Defendant

Kazungu holding brief for Lumatete for plaintiff

C.K. YANO

JUDGE