Hamisi Ramadhan Chibendo v Hamisi Mwawimo, Mshamed S Mwanaziki & Swaleh Said [2021] KEELC 360 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

ENVIRONMENT AND LAND COURT

ELC CASE NO 250 OF 2016

HAMISI RAMADHAN CHIBENDO.......PLAINTIFF

VERSUS

HAMISI MWAWIMO....................1ST DEFENDANT

MSHAMED S MWANAZIKI ......2ND DEFENDNAT

SWALEH SAID.............................3RD DEFENDANT

RULING

I  PRELIMINARIES

1. This matter is part heard whereby the Plaintiff’s witness - PW-1 has already testified on 1st October, 2018. For some unclear reason or the other, from that time the suit stalled todate. On 30th September, 2021, when it was mentioned before this Honorable Court, the  Learned Counsel  Mr. Omollo for the Defendants  indicated  that he had just taken over the matter from the previous law firm representing the Defendants. Hence, for this reason he sought leave to file a further  list of documents  specifically to  introduce a report by a Land  Surveyor.

A. The Defendant’s Opposition.

The afore stated application for leave by the Defendant’s Advocate to file further documents at this stage of the proceedings was strongly opposed by the Learned Counsel for the Plaintiff, Mr. Ondieki on grounds that the only witness   who had remained for the Plaintiffs to close their case was the chief.  Essentially, according to the Advocate the witness was to appear for purposes of  producing a letter  dated 3rd August, 2016 marked as “PMF -1-3”. Therefore, he argued that to allow  filing of any new  documents would  be  prejudicial to the  Plaintiff at this stage.

B. Court’s decision.

Despite this objection, the Honorable court in the interest of justice, equity, constitution expeditious disposal proportionate and accessible to resolution it would dispute applied its discretion under the  provisions of  Sections  1, 1A, 3, 3A of the Civil Procedure Act  and Sections 3,14 and 19 of the Environment Land Act, (what has come to be termed as “the overriding objectives/or the Oxygen principles), Sections 101 of Land Registration Act of 2012 and 150 of Land Act of 2012 to grant leave to allowing  the  Defendants  file further  list of documents - specifically the Land Surveyor’s reports. In  addition and in order to balance the  scale of justice pursuant to the  provision  of Order  18 Rule 10 of the  Civil Procedure Act, the  Plaintiffs were also granted corresponding leave to be at  liberty to recall  PW - 1 for  purposes of  adducing evidence in chief and cross examination  specifically on the  further  list of documents.

C. The filing of the Land Surveyor’s report.

Subsequently, the Defendant filed and served the further list of document. On 11th November, 2021, when the  matter was  slated for  further direction on  fixing for its further  hearing  the  Learned Counsel,   Mr. Omollo for the Defendant raised a pertinent issue arising from the  filed  Land Surveyor  report, dated 26th  October, 2021,  by  a private  surveyors  trading in the names and style of -  “Seline  Consultants  Limited” and its recommendations.  He held to that based on the provisions of Section 18 (2) of the Land Registration Act, it was only the Land Registrar who could entertain any action or other proceedings relating to dispute on general boundaries of registered land unless the boundaries were  fixed as per the Provisions of Section 19(1) & (3) of the Act thereof. Clearly, the Learned Counsel argued that this matter involved general boundary which fell under the ambit of the Provisions of Section 18 (2) of the Land Registration Act.  This court would have no jurisdiction to hear any further but to let it be heard and finalized by the Land Registrar as required by law. As a rejoinder, Mr. Ondieki opposed the said objection raised by Mr. Omollo. He indicated, that there  had never been any Land Surveyor  report available.  He stated even  as based from the  averments  made out under paragraphs 7,8 and 9 of the filed Plaints.

The  Land Surveyor had always  been  refused and/or  cautioned from conducting such a  land surveyor  on to the two suit parcels of land namely - the land Kwale/Ukunda/5194 and Kwale/Ukunda/5195 as  people would  always  be  violent frustrating the  efforts by the Land Surveyor. Be that as it may, he reported that pursuat to a meeting convened by the area chief, he now informed court that the parties were willing to conduct a mutual land survey.

It is based on this background that this Honorable Court indicated the need to provide a comprehensive direction on how the matter was to proceed vis-a vis the objections raised on matters of law particularly the provision of Section 18 (2) of the Land Registration Act.

II.    THE DIRECTION BY COURT.

6. I have read carefully the pleadings, the Land Surveyors’ report and then listened to the oral submissions by counsels for both the Plaintiff and Defendants and the relevant provisions of Land in order for this Honorable Court to make a reasonable decision.  I have decided to deal with only one issue – whether this court has jurisdiction to deal on boundaries matters emanating from Section 18 (2) of the Land Registration Act.

7. It is now trite Law that at any stage once a matter of jurisdiction is raised the court has no choice but to down its tools.  This legal preposition was well established in the now famous case in the now famous case of “Owners of Motor Vessel “Lilian S” – Versus - Caltex Oil (Kenya) Limited (1989) IKLR dealt with a court, jurisdiction thus:-

“Jurisdiction is everything. Without it, a court has no powers to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of the proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion it is without jurisdiction…………where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before Judgement is given”.

In this case this court’s jurisdiction has been challenged and anything the court does from now onwards will become a nullity whatsoever. The provision of Section 18 (2) 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  situations  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.

Section19 (3) defines “fixed boundaries” to mean where the dimensions and boundaries of a parcel are defined by reference to a plan verified by the office or authority responsible for this survey of land.

In  the case of “Ali  Mohamed Salim Versus - Faisel Hassan Ali (2014)  eKLR the  type of survey that generates  the  Registered Index Map ( RIM) is known as “General boundaries” which has been defined under Section 18 (1) to mean “the approximate boundaries  and the approximate  situation only of the parcel”.

In “Azzuri Limited – Versus - Pink Properties  Limited” ( 2017) eKLR, it was held that:-

“ In his  Paper  “The  role the  Registry Index Map ” RIM in land  management in Kenya”  Peter K. Wanyoike has  stated that the  Registered Index Map is a very useful  document in registration and management of Land in Kenya within the  context of  “General boundaries “ or  approximate boundaries”. The paper defines General Boundaries” as follows:-

“A boundary of which the precise line is undetermined in relation to the physical features which demarcate it...... However, it is clear on the  ground where the  parcel  is  situated and where the  boundaries are, for they are clearly visible and  unmistakable  physical features  though they do not  indicate the exact  location of the  line within the  breath which such physical features necessary process.

8.  Most of the titles under Registered Index Map reported were issued on the basis of the general boundaries meaning that such parcel of land had not fixed boundaries.     Such features indicate hedges, fences and roads. On the other hand land registered under Registration of Titles Act required a cadastral survey to be prepared which is based on a fixed boundary principle.

Because general boundaries are identifiable by suing the existing physical features   and by interviewing the owners of the adjacent plots, the law requires disputes relating to such boundaries to be handled by the Land Registrar and not surveyors or court Section 18 (2). In other words all general boundaries are under the mandate of the Land Registrar and no one else.

In this case the Plaintiff filed the case seeking for orders a survey to be conducted over the two parcels of land being

(a) Kwale/Ukunda/5194 and (b) Kwale/Ukunda/5195 respectively both registered under the Registration of Land Act Cap. 300 (Repealed) on 6th October, 2015.

III.DETERMINATION

Clearly, the instant case involves general boundaries. Therefore, it is under, the legal mandate of the Land Registrar as empowered by the provision of Section 18 (2) of Land Registration Act.  In the given circumstances I do direct as follows;

1. THAT this  court has no jurisdiction  to continue hearing  this matter  as the  right place is the Land Register -18 (2) and has  become “functus officio”.

2. THAT the matter is placed before the Land Registrar to deal within the next 180 days from today and furnish this court with a report accordingly.

3. THAT should the parties feel aggrieved by the decision of the Land Registrar   the Land Registration Act provides mechanism of preferring an appeal before the Chief Land Registrar under Section 17 is orders.

IT IS SO ORDERED.

RULING IS DATED, SIGNED and DELIVERED AT MOMBASA THIS 3RD DAY OF DECEMBER, 2021

HON. JUSTICE L.L NAIKUNI

JUDGE

ENVIRONMENT AND LAND COURT, MOMBASA

In the presence of:-

M/s. Yumna – the Court Assistant

Mr. Ondieki  Advocate for the Plaintiff.

Mr. Omollo Advocate for the Defendants.