Herman Leo Ogulla v Robert Idewa Emoit [2018] KEELC 4270 (KLR)

REPUBLIC OF KENYA.

ENVIRONMENT AND LAND COURT AT BUNGOMA.

ELC CASE NO. 97 OF 2017.

HERMAN LEO OGULLA..............................................PLAINTIFF

VERSUS.

ROBERT IDEWA EMOIT..........................................DEFENDANT

RULING.

[1].  The applicant in this court filed the suit herein and prayed for the following orders;

1. THAT  pending the hearing and final determination of this suit, this Honourable Court be pleased to issue a temporary injunction against the Defendant to prevent and/or stop any transaction, construction works, building and/or development on, over and along the boundary between Title Number E. BUKUSU/S. KANDUYI/2958 and Title Number E. BUKUSU/S. KANDUYI/6418;

2. THAT  the Defendant be ordered to demolish the portion of the said structures that has encroached on to the Plaintiff’s property.

3. THAT  a declaration do issue that there is a boundary dispute between the Plaintiff and Defendant for determination by this Honourable Court;

4. THAT  an order do issue to the County/District Surveyor, Bungoma, to conduct undertake and carryout a fair and accurate survey over the two parcels of land known as Title Number E. BUKUSU/S. KANDUYI/2958 and Title Number E. BUKUSU/S. KANDUYI/6418 to determine the boundaries and file a report, Mutation Forms over the subject properties and issue a Beacon Certificate before this Honourable Court at the earliest;

5. THAT  an order to issue to the County/Town Planning Department, Bungoma, to furnish this honourable court with all County Minutes and Approvals of the Architectural/Building Plans for the development/construction along boundaries over Title Number E. BUKUSU/S. KANDUYI/2958 and Title Number E. BUKUSU/S. KANDUYI/6418  respectively;

6. The costs of this suit.

[2]. The applicants after filing the defence, filed notice of Preliminary Objection on 18th September, 2017. Whereupon the respondent filed what he called statement of grounds of opposition.  He stated, that this case is not a boundary dispute but a dispute about the defendants actions of constructing a building which has inflicted, hindered and infringed on the plaintiff’s right to quiet enjoyment of land.  He further argued that the court has jurisdiction to hear and determine this case. That this power is conferred upon it by article 162 (2) (b) of the Constitution of Kenya 2010 and Sec. 13 (1) of the Environment and Land Court Act No. 19 of 2011.

[3]. The plaintiff in his argument stated that this was a boundary dispute and that the court had no jurisdiction under Sec 18(2) of the Land Registration Act 2012. He argued that issues of boundary must be dealt as provided by Sec. 19 of the Land Registration Act.  He argued that article 162 (2) (b) merely created the land registration Act and does not give this court jurisdiction to deal with boundaries to land. That the jurisdiction of the court are determined by Acts of Parliament. He argued that the suit is prematurely filed and should be struck out.

[4]. The respondent in reply relied on his objections as filed, as earlier stated herein. He emphasized that the court has Jurisdiction to listen to the case pursuant to Sec. 13 (2) of the land and environment Act and under article 162 (2) (b) of the constitution of Kenya 2010.

[5].  I have considered both arguments of the counsels for the parties. I have also looked at the Laws applicable and have come to the following conclusion. That the Land and environment court was created by article 162 (2) (b)  of the constitution as a court with status of High Court to hear and determine disputes relating the environment and use and occupation of, and title to, Land. That parliament was to determine the jurisdiction and functions of the said court.

[6].  Parliament vide its powers under 162 (2) (b) enacted the Environment and Land Court Act which commenced on 30th August, 2011.  Section 13 (2) (a) of the same gave the court power to hear disputes including boundaries.

[7].  Later parliament enacted the Land Registration Act 2012 which commenced on 2nd May 2012. Sec. 18 (2) of the same states that the court shall not entertain any action or other proceedings relating to a dispute as to boundaries of registered land unless the boundaries have been determined in accordance with that section.  Sec 19 of the said act gives an elaborate procedure of determining boundaries by the land registrar and the surveyor.

Sec. 5 of the same act states that;

“Except as otherwise provided in this act, no other written Law, practice or procedure relating to land shall apply to land registered or deemed to be registered under this Act so far as it is inconsistent with this Act”.

[8]. The Land registration act 2012 is a Latter Act than the Environment and Land Act 2011.  Parliament then ousted the jurisdiction of the court in as far as it relates to boundaries in Sec. 13(2) of the environment and land court Act until the same had been determined under Sec. 18 of the Land registration Act 2012.  The Land Registration Act 2012 Sec 18(2) and Sec 5 of the same became the first point of reference in regard to boundary disputes of registered land.

[9]. There is no doubt that the issue raised in the plaintiffs suit is a boundary dispute. The plaintiff plainly states as much in his pleadings. This suit therefore offends Sec. 18(2) of the Land Act 2012 in that no determination has been done under that section. It is filed in a court that has no jurisdiction. The court cannot grant the orders sought. There is a specific procedure to address the issues raised in the suit.  The Preliminary Objection is sustained. The suit is struck out with costs.

Ruling read in open Court before the Counsels.

Dated at Bungoma this 21st day of  February, 2018.

S. MUKUNYA

JUDGE

In the presence of:

Joy:  Court Assistant

Mr. Muniafu for the Plaintiff/applicant

Mr. Tsimonjero:  For Mr. Mukisu -  Present