1.Fredrick Juma Osuru, the Appellant herein has brought this appeal against the decision of Hon. W. K. Onkunya SRM delivered on February 13, 2020at Kisumu Chief Magistrates Environment and Land Court Case no. 191 of 2018. In that matter the appellant who was the plaintiff filed plaint that was amended on 28th January 2019 seeking a declaration that the suit property number Kisumu/Pandpieri/1086 did not encroach on the Pharmacy Oboch Road to be constructed or rehabilitated by the respondents.
2.He sought a permanent injunction against the respondents by their servants and or agents from constructing and or rehabilitating a road on land parcel number Kisumu/Pandpieri/1086 or demolishing any structure thereon. The appellant prayed for compensation in the alternative.
3.The 1st and 2nd respondents herein denied the contents of the amended plaint but admitted the jurisdiction of the court. Likewise the 3rd respondent denied the contents of the plaint and admitted the jurisdiction of the court. The 3rd Defendant filed a preliminary objection that the suit was a boundary dispute pursuant to section 18 (2) of the land Registration Act. The 3rd respondent argued that the court should not entertain any action or other proceedings relating a dispute as to the boundaries of registered land unless the boundaries have been delivered in accordance with the Section.
4.The Honourable Magistrate found that from the pleadings, it was clear that the dispute is in regard to the correct boundary position of the suit land and the road reserve which mandate falls within the purview of the Land Registrar. According to the honourable court, the boundaries have to be established first before the other issues of compensation and permanent injunction can be considered.
5.The court observed that Justice S. M. Kibunja in his ruling dated April 27, 2016on his own motion directed the County Land Registrar to confirm the Boundary between Kisumu/Pandpieri/1086 and the road reserved and that the road reserve was to be filed within 60 days indicating the extent of encroachment which according to the Magistrate had not been done.
6.Ultimately the court found that it lacked Jurisdiction and the plaint dated September 23, 2018 and amended on January 28, 2019was dismissed.
7.The Appellant appealed to this court on grounds that the learned Magistrate erred in law and fact as the dispute revolving on the boundary had been determined by the Land Registrar and the boundary fixed as per Section 21 (2) of the Registration Land Act Cap 300 (now repealed) as replaced by Section 18 of Land Registration Act No. 3 of 2012. Moreover that the Learned Magistrate failed to analyse documents and submissions on record and that the dispute was encroachment and claim for compensation and not boundary dispute.
8.The appellant prays that the appeal be allowed and ruling of the trial court delivered on February 13, 2020be set aside and substituted with the Judgment dismissing the Preliminary Objection dated September 12, 2019.
9.The gravamen of the appellant submissions is that the Land Registrar has already determined the boundary between parcel of land number Kisumu/Pandpieri/1086 and the road reserve has been determined hence the Preliminary Objection was misplaced. The Respondent on the other hand submits that the Preliminary Objection was well founded and that the learned Magistrate properly held that the court had no jurisdiction to entertain the matter as it was a boundary dispute.
10.I have considered the rival submission on the appeal and to begin with the basis of Preliminary Objection was Section 18 of the Land Registration Act 2012 thus provides:-(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 the 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).”
11.It is clear that the above provision ousts the jurisdiction of the court when it comes to boundary disputes. Several decisions have been made by the courts in Kenya in respect of Section 18 of the Land Registration act.
12.In the Court of Appeal Case of Azzuri Limited v Pink Properties Limited  eKLR, the court stated as follows in relation to the application of Section 18 of the Land Registration Act;
13.In the case of George Kamau Macharia & Dexka Limited (2019) eKLR, Kemei J stated as follows:
14.While in the case of Willis Ocholla vs Mary Ndege (2016) eKLR Kibunja J rendered himself thus,
15.In the Court of Appeal Case of Estate Sonrisa Ltd & another v Samuel Kamau Macharia & 2 others  eKLR , the court stated thus;
16.The aforementioned case law clearly indicate that the dispute relating to boundaries ought to be resolved by the Land Registrar in the first instance. The decision thereof can then be challenged in court pursuant to the provisions of Sections 79 (3A), 80, 86 and 91 (9) of the Land Registration Act.
17.It is trite law that where the law has given a legal obligation to a department of Government, it is important for the Court to let that department proceed to meet the legal obligations. In this case the office of the Land Registrar is mandated to deal with the general boundary dispute first before the same is escalated to the Court. It is the view of this Court that the dispute is prematurely before the Court.
18.In Speaker of National Assembly –Versus- Karume(1992)KLR 21 the court held:-
19.However, this case appears to be an exceptional as there is evidence on record that the Land Registrar has dealt with the issue of boundary. I have perused the investigation report by the District Land Registrar – Kisumu by Mr. J. A. Mudimba and the Surveyor Mr. Stephen Mbela into a dispute over access road serving parcel No. Kisumu/Pandpieri/537, 1086, 441 among many others on January 21, 1999at 10.00 a.m. and the proceedings therein and the findings by the Land Registrar where the Land Registrar states
20.I do find that in view of this determination the Preliminary Objection was not merited and therefore the honourable court erred in striking out the suit. The appeal is hereby allowed and the Ruling allowing the preliminary Objection dated the February 13, 2020 is set aside and the Preliminary Objection dated September 12, 2019 is dismissed with costs. The cost of the appeal to the Appellant. Orders accordingly.