Maricus Otieno Okwayo v George Owenge Aluoch [2017] KEELC 3607 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CASE NO.123 OF 2014

MARICUS OTIENO OKWAYO..........................................................PLAINTIFF

VERSUS

GEORGE OWENGE ALUOCH ......................................................DEFENDANT

RULING

1. The Plaintiff, Maricus Otieno Okwayo, commenced this suit through the plaint dated 22nd April 2016 averring that the defendant, George Owange Aluoch, had trespassed onto his land north Ugenya/Yenga/49 and as a result he has  suffered special damages of Kshs.49230/= which he prays for.  He also prays for injunction restraining the Defendant from trespassing and interfering with the land and a declaration that the said land belongs to him.  The Plaintiff also filed a notice of motion dated 3rd June 2016 seeking for implementation of Land Surveyor/Registrars determination in 14 days, restraining   order against the Defendant pending the hearing and determination of the application among others.

2. The Defendant filed a notice to raise a preliminary objection dated 30th June 2016 on two grounds that this courts lacks jurisdiction  and that the matter is one that the District Land Registrar and Surveyor can handle.

3. The Plaintiff opposed the preliminary objection through the grounds of opposition dated 4th August 2016.

4. The preliminary objection came up for hearing on the 2nd November 2016 when Mr. Kowinoh, learned counsel for the Defendant, and the Plaintiff in person made their oral rival submissions.

5. The following are the issues for the court’s determination;

a) Whether the suit filed by the Plaintiff is based on a boundary dispute.

b) Whether the boundary has been determined by the Land Registrar.

c) 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.

d)  What orders to make.

6. The court has carefully considered the grounds in the notice of preliminary objection, and grounds of objection, the oral rival submissions, the pleading so far filed and come to the following findings:

a) That the averments in paragraph 4, 5 and 6 of the Plaint clearly shows that the suit filed by the Plaintiff against theDefendant is based on a boundary dispute over land parcelNorth 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.

b) That the Defendant’s preliminary objection is that the Plaintiff’s suit is prematurely filed in court because the Land Registrar has not determined the boundary as required under Section 18 of the Land Registration Act.  The Plaintiff has countered that by stating that he had reported the dispute first to the Assistant Chief, who then did a letter dated 24th June 2014 to the District Surveyor and another dated 25th June 2014 to the Land Registrar.  The Plaintiff refered the court to a report dated 25th August 2014 by the District Survey office and copied to the District Land Registrar, Ugenya among others and submitted that it satisfies the requirement of a boundary determination by the Land Registrar.

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.

d) That as this matter is essentially about the boundary relating to land parcel North Ugenya/Yenga/49, the same was prematurely filed in court before the boundary could be determined by the Land Registrar, contrary to the requirement of the Law.

e) That the exercise by the Land Surveyor and the report thereof cannot be a substitute for the boundary demarcation and report thereof by the Land Registrar as the Plaintiff appeared to believe.  The office of the Land Registrar and that of the Surveyor are two different offices each with its own legal and administrative mandates.

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.

It is so ordered.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

DATED AND DELIVERED THIS 15TH DAY OF FEBRUARY 2017

In presence of;

Plaintiff Present

Defendant Absent

Counsel None

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

15/2/2017

15/2/2017

S.M. Kibunja Judge

Oyugi court assistant

Plaintiff present

Court:  Ruling dated and delivered in open court in presence of the Plaintiff only.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

15/2/2017