1.Before court is a notice of motion dated October 15, 2021 filed by the 2nd, 3rd, 5th and 6th defendants seeking the following orders;(a)That this honourable court be pleased to withdraw this suit ELC suit No E085 of 2021 which is pending before the Environment and Land Court Machakos and proceed to declare the entire suit a nullity and void due to lack of jurisdiction.(b)That the costs of this application be borne by the plaintiff.
2.The application is anchored on the grounds listed on its face as well as the supporting affidavit sworn by Eric Osoro, the 2nd defendant. The applicants’ case is that the dispute herein is about the position of the boundary between the plaintiff’s parcel No Mavoko town block 3/3468 and the defendants’ plot which are part of parcel number Mavoko town block 3/3467. It is the applicants’ position that by dint of section 18 (2) of the Land Registrar Act No 3 of 2012, this court lacks jurisdiction to entertain this claim.
3.The applicants stated that they were the registered proprietors of parcel number LR No Mavoko town block 3/70692, LR No Mavoko town block 3/70693, LR No Mavoko town block 3/70691, LR No Mavoko town block 3/70673 and LR No Mavoko town block 3/70665 respectively, which parcels were subdivided from LR No Mavoko town block 3/3467. That parcel Mavoko town block 3/3467 is adjacent to the plaintiff’s parcel No Mavoko town block 3/3468.
4.According to the applicants, the dispute herein is that the defendants have encroached on the plaintiff’s land, which is a boundary dispute, yet it has never been referred to the land registrar, Machakos for determination. The applicants maintain that the plaintiff’s allegation is that the county surveyor was seized of the matter is not a substitute for the land registrar’s jurisdiction under section 18 (2) of the Land Registration Act.
5.The application is opposed. The plaintiff filed a replying affidavit sworn on November 18, 2021. It is the plaintiff/respondent’s case that this court has jurisdiction to hear and determine this matter. He stated that parcel No Mavoko town block 3/3467 does not exist as the same was subdivided into plot No 51220 and 51221. According to the plaintiff, the 8th defendant fraudulently and unlawfully hived off a portion of land measuring 6.271 ha from the plaintiff’s parcel herein, subdivided the same and issued new titles, which was a calculated theft of the plaintiff’s land.
6.The respondent’s position is that the dispute herein is not a boundary dispute but, a well calculated theft of the plaintiff’s land.
7.The application was canvassed by way of written submissions. On record are the applicant’s submissions dated January 13, 2022 as well as the respondent’s submissions dated May 3, 2022.
Analysis and Determination
18.I have carefully considered the application, the replying affidavits, submissions and authorities cited. The sole issue that arise for determination is whether this court lacks jurisdiction to determine this matter.
19.The applicants’ contention on lack of jurisdiction is anchored in section 18 (2) of the Land Registration Act. That section provides as follows;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.
20.Section 18 (3) and 19 of the Land Registration Act gives the land registrar the power to hear boundary disputes and upon determination, he may fix the precise position of the boundaries in issue.
21.Section 18 (2) of the Land Registration Act is couched in mandatory terms and therefore this court cannot determine matters touching on general boundaries and or where boundaries have not been fixed. That is the preserve of the land registrar. The jurisdiction of this court to determine boundary disputes provided for in section 13 (2) (a) of the Environment and Land Court Act ought to be distinguished from the jurisdiction of the land registrar under section 18 (2) of the Land Registration Act. The provisions of section 13 (2) (a) of the Environment and Land Act refers to boundaries, which in my view are fixed boundaries. section 18 (2) of the Land Registration Act is specific only to boundaries of registered land which have not been determined as those are boundaries based on cadastral map which are approximate boundaries and not fixed boundaries.
22.In determining the nature of the dispute herein and whether the same falls within the purview of section 18 (2) of the Land Registration Act, I must interrogate the plaintiffs complaint and the reliefs sought. In the amended plaint filed on November 18, 2021, the plaintiff states that the 8th defendant while subdividing his parcel Mavoko town block 3/51221, hived off 6.271 ha from the plaintiff’s parcel Mavoko town block 3/3468, illegally subdivided it into several portions, created new numbers and disposed off and transferred the same to members of the public including the 1st–7th defendants. The plaintiff sought for a permanent injunction, against the defendants, an order cancelling the alleged unlawful subdivisions/mutations in respect of parcel 3/3468 and the resultant titles, an order of eviction and an order of general damages.
23.It is not in dispute that parcel number Mavoko town block 3/3468 belongs to the plaintiff and Mavoko town block 3/51221 belonged to the 8th defendant and the same was subdivided to result in titles owned by the 1st to 7th defendants. I have also looked at the mutation provided by the applicants and marked as JKI -3 and the layout produced by the respondent and marked as MN-1, it is clear that there is no dispute as to where the boundary line lies between parcel Mavoko town block 3/3468 and Mavoko town block 3/51221 is.
24.According to the plaintiff, part of his land parcel Mavoko town block 3/3468, measuring 6.271 ha was hived off by the 8th Defendant at the time the latter was subdividing his parcel Mavoko town block 3/51221. Further that titles were created in his land, sold and transferred to the 1st to 7th defendants and other members of the public. The plaintiff argues that the subdivision/mutation and creation of new titles on his parcel of land was fraudulent and that the resultant titles ought to be cancelled.
25.In my considered view, the plaintiff’s complaints of fraud and illegal subdivision of his parcel of land and his prayer for cancellation of resultant titles, eviction and general damages for trespass cannot be matters that can be determined by the land registrar. While the report by the surveyor produced by the plaintiff may require the land registrar’s input, the dispute herein is not just about the boundary. In the premises, the application dated October 15, 2021 lacks merit and the same is hereby dismissed with no order as to costs.