Onywere v Alendi (Environment and Land Case E030 of 2024) [2025] KEELC 6904 (KLR) (9 October 2025) (Ruling)
Neutral citation:
[2025] KEELC 6904 (KLR)
Republic of Kenya
Environment and Land Case E030 of 2024
E Asati, J
October 9, 2025
Between
Wilfred Ondimu Onywere
Plaintiff
and
Mary Awinja Alendi
Defendant
Ruling
1.This ruling is in respect of a Preliminary Objection filed by the Defendant vide the Notice of Preliminary Objection dated 18th December, 2024.
2.The grounds upon which the objection is based are that;a.The Defendant’s father in law’s parcel No.8341/52 Maseno Township share a common boundary with the Plaintiff’s parcel No.143 Maseno Township as the said parcels are adjacent to each other.b.That the Plaintiff’s suit therefore offends the provisions of Section 19(1)(2) and 3 as read with section 18(2) of the Land Registration Act, 2012 which mandatorily reserve boundary disputes to the Land Registrar at first instance prior to moving the Honourable Court.c.This Honourable court therefore lacks jurisdiction to handle suit as this court does not have jurisdiction to deal with boundary disputes.
5.Vide directions given on 18th March, 2025, the Preliminary Objection was heard by way of written submissions.
6.It was submitted on behalf of the Defendant vide the written submissions dated 1st April, 2025 filed by the firm of Bruce Odeny & Company Advocates that the Defendant had pleaded in her defence that parcel No.934/52 Maseno Township and plot No.143 Maseno Township are adjacent to each other. That from the facts pleaded in the plaint, the Plaintiff has averred that he engaged a team of Surveyors to survey his plot No.143 which activities were undertaken and boundaries established. That the Surveyor’s report in the Plaintiff’s list of documents does not show whether the proprietor of parcel No.9341/52 which is stated to have encroached onto the Plaintiff’s plot was present during the survey exercise. That the survey report is ambiguous.
7.That there is indeed a boundary dispute between the two parcels of land which falls within the jurisdiction of the Land Registrar who has the jurisdiction to hear and determine which boundary dispute has not been resolved and is pleaded as encroachment by the Plaintiff.
8.That unless the Land Registrar determined the dispute, the court has no jurisdiction to entertain the suit.
9.Counsel relied on the case on Owner of the Motor Vessel “Lilian S”-vs- Caltex Oil (Kenya Limited) to submit that without jurisdiction, the court should down its tools. Counsel urged the court to uphold the Preliminary Objection and strike out the suit with costs.
10.Written submissions dated 13th May, 2025 were filed on behalf of the Plaintiff by the firm of MOA Advocates LLP.
11.Counsel submitted that the Plaintiff’s suit highlighted particulars of trespass, negligence and special damages which cannot be addressed to conclusion by the Land Registrar. Counsel relied on the case of Oraro-vs- Mbaja (2005)eKLR 141 and submitted that the facts raised in the Preliminary Objection can only are matters of great controversy as their factual foundation are the subject of the dispute to the boundaries. That the boundaries had already been established and beacons placed.
12.Counsel also relied on the case of Avtar Singh Bharma & Another -vs- Oriental Commercial Bank Kisumu HCCC NO.53 OF 2004 where it was held that a preliminary objection must stem from the pleadings filed by the parties and must be based on points of law.
13.Counsel urged the court to dismiss the Preliminary Objection with costs.
14.In opposition to the Preliminary Objection, the Plaintiff filed his Replying Affidavit sworn on 13th May, 2025. He deposed that the provisions of section 19(1), (2) and (3) as read with Section 18(2) of the Land Registration Act, 2012 were irrelevant. That the boundary was determined where in the Surveyor issued him with a beacon certificate where it emerged that the Defendant had encroached onto his land. That the issue before court is based on trespass.
15.I have considered the Preliminary Objection, the grounds raised in opposition thereto and the written submissions filed.
16.The threshold for a preliminary objection to be sustainable was set in the in the case of Mukisa Biscuit Manufacturing Co. Ltd – vs- West End Distributors Ltd [1969] E.A 696 that it consists a point of law which has been pleaded and which if argued as a preliminary point may disposed of the suit; examples of which are objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration. That a preliminary objection is argued on the assumption that all the facts pleaded by the other side are correct. That a preliminary objection cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
17.In the present case the objection is raised on a point of law that the court lacks jurisdiction pursuant to the provisions of sections 18 and 19 of the Land Registration Act.
18.A reading of the plaint dated 14th August 2024 shows that the plaint refers to only one parcel land namely plot number 148 Maseno Township. The plaint does not mention any other parcel of land with which the Plaintiff’s land shares a common boundary. The plaint is based on the tort of trespass. The particulars of the trespass pleaded under paragraph 16 of the plaint are that the defendant entered the suit land and erected structures thereon without the plaintiff’s consent. The plaint does not relate to a dispute on the position of the common boundary between the suit land and any land.
19.Plot number 9341/52 Maseno Township was introduced vide the Defence dated 18th December 2024 by the defendant. In paragraph 12 thereof, the defendant pleaded that her father in law’s land parcel number 9341/52 shares a common boundary with the suit land because they are adjacent to each other.
20.The father in law of the defendant is not a party to these proceedings. There is no indication in the defence that there is any boundary dispute between the two plots. It requires evidence to be adduced to establish how the acts complained of by the plaintiff in the plaint against the defendant relate to the defendant’s father in law and the two parcels of land.
21.The court finds that the Preliminary Objection lacks merit and hereby dismisses it. Each party to bear own costs of the Preliminary Objection.
21.Orders accordingly.
RULING READ AND SIGNED AT KISUMU AND DELIVERED THIS 9TH OCTOBER, 2025 VIRTUALLY THROUGH MICROSOFT TEAMS ONLINE APPLICATION.E. ASATI,JUDGE.In the presence of:Maureen: Court Assistant.Awuonda for the PlaintiffNo appearance for the Defendant.