REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATES COURT AT NAIROBI

MILIMANI COMMERCIAL COURT
CAUSE NO. E.029 OF 2021
PETER MAKARA GAITHO PLAINTIFF
VERSUS
DAVID NJENGA KINUTHIA T/A PEHUCCI SCHOOL 1ST DEFENDANT
EMBAKASI RANCHING LIMITED 2ND DEFENDANT
PLAINTIFF WRITTEN SUBMISSIONS
(In Response to Defendant’s Preliminary Objection Dated 28th October 2021)
May It Please Your Honour,
A. BACKGROUND
B. FACTS
C. ISSUES FOR DETERMINATION
D. CONCLUSION

A. BACKGROUND.
1. The Plaintiff filed the instant suit via Plaint dated 05/02/2021, alongside a Notice of
Motion Application under Certificate of Urgency, evenly dated. The application was
heard and determined via the ruling issued on 24/08/2021.
2. The Plaintiff, in his Plaint dated sought orders against the Defendant as follows:
(a) A declaration that the 1st Defendant has by his acts complained of herein,
unlawfully encroached and trespassed onto the Plaintiff’s Plots Block Nairobi
136/3289 and Block 136/3269.
(b) An order of permanent injunction do issue restraining the 1 st Defendant, their
agents, servants, and/or employees from trespassing, entering, remaining,
working on or dealing with land Reference Numbers Nairobi Block 136/3268
and Block 136/3269 and cede vacant possession of such part of the said plots as
has been encroached and/or trespassed vide the fencing and other acts thereon.
(c) Any other orders that the Court may deem fit to grant.
(d) General and exemplary damages for trespass to the Plaintiff’s land
(e) Costs of the suit.
3. The facts as pleaded are that the Plaintiff is the registered owner of all those pieces of
land known as Nairobi Block 136/3268 and 3269, and copies of Certificates of lease
are on record as proof of ownership. The Plaintiff also attached the site maps, clearly
indicating the location sizes and the extent of the plots.
4. That the 1st Defendant has without any shade and color of right, moved into the
Plaintiff’s land and contuse to occupy it and drawing financial gain therefrom, and
unwilling to vacate.
5. For clarity, the Plaintiff does not in his pleadings on record dispute the boundaries as
indicated on the maps. The Plaintiff is categorical that he is the registered owner of the
entire suit land.
6. The title documents over the suit land were issued to the plaintiff in September, 2020
after due process by the Lands Registry.
7. The 1st Defendant and the 2nd Defendant never filed any Defences to date. The 1st
defendant’s advocates on record only filed the Notice of Appointment of Advocates
dated 01/03/2021.
8. The 1st Defendant has now filed the preliminary objection, to which we submit herein.
9. It is worth noting that up to this time, almost 3 months after the objection was filed,
and the 1st Defendant has not put in his submissions nor taken any step towards the
prosecution of the objection.
B. ISSUES FOR DETERMINATION.
i. Whether there is a boundary dispute between the plaintiff and the 1st Defendant?
ii. Whether the Notice of Preliminary Objection dated 28/10/2021 has merit?
i. Whether there is a boundary dispute between the Plaintiff and the 1st Defendant?
10. Paragraph 7 of the Plaint on which the basis of the Objection stems is a statement of
fact. The Defendant in his replying Affidavit to the Plaintiff’s Application denied ever
being invited to any such meetings. The 1st Defendant also contests that he is not in
occupation of the suit property. This fact is therefore contested, and the record can
attest to this. Paragraph 3 and 4 of the 1st Defendant’s “Further Replying Affidavit”
sworn on 17th June, 2021 goes:
3. THAT I have not occupied LR No. Nairobi Block 136/3268 or L.R NO. Nairobi
Block 136/3269
4. THAT the said plots are far removed, distinct and separate from my plots
which are L.R No. Nairobi Block 136/3277 and L.R No. Nairobi Block 136/3278.
11. The 1st Defendant does not state if his alleged pieces of land share a common boundary
with the Plaintiff’s suit property, but instead continues to utter the term ‘boundary’
repeatedly with no other known intent apart from misleading the honorable court that
this is a boundary dispute when it is actually not.
12. It is imperative to note that the said paragraph 7 was simply detailing and /or narrating
the history of the dispute herein and nothing more. It does not touch on what is actually
currently before this honorable court, and there, the single mention of the term
‘boundary’ by the plaintiff in the circumstances does not then turn the whole matter to
a boundary dispute. That was not the Plaintiff’s intention and this position was
submitted in the Plaintiff’s Submissions to his application dated 05/01/2021.
13. Paragraph 5 of the plaint is explicit that the 1st Defendant has encroached onto the suit
land, fencing it and setting up structures thereon. The facts are therefore properly
contested and not agreed. It is the Plaintiff’s position that the 1st Defendant has simply
taken over his property and remained on it without any lawful justification.
14. A casual reading of the Plaintiff’s Witness Statement dated 05/02/2022 clearly indicate
that the boundary issues if any, were solved when the survey over the properties was
done, and the proof of the survey is attached. The issue was therefore sealed when the
Certificates of Lease were finally issued in September 2020 to the Plaintiff.
15. The invitations referred to in Paragraph 7 were done between 2012 and 2018, long
before the titles were issued. The final issue of the Title documents and the Maps for
the properties, determined the boundaries of the suit plots under Section 19(3) of the
Act.
16. The prayers in the Plaint as reproduced in Paragraph 2 here above do not disclose this
as being a ‘boundary dispute’. Otherwise, the issues raised in the Plaintiff’s pleadings
are not limited to paragraph 7. Acts of transgression of the law and the constitution
ought to be determined, which is why the Plaintiff sought various orders and
declaration, which cannot be adjudicated, determined and granted by the Land
Registrar.
17. In Karisa Ngari Kombe v Esther Nzingo Kalume & another [2020] eKLR, the court
disposed of the Preliminary objection similar to this one in the following terms:
“…From the pleadings, it cannot be said that the case is purely one of a boundary
dispute as submitted by the 1st and 2nd defendants. From the pleadings the issues are
highly contested. I find and hold that the notice of preliminary objection dated
22nd February 2019 does not raise a pure point of law as it requires some investigations
of some facts. …. In my view, these are matters that are fit and proper arguments in
the substantive suit. For the foregoing I am inclined to dismiss the notice of preliminary
objection…”
18. In any case, this cannot be a boundary dispute between the Plaintiff and the 1 st
Defendant. There is no common boundary between the Defendant’s alleged plots Block
136/3277 and 136/3288. The 1st Defendant is also clear on this when he states the plots
are “far removed, separate and distinct”. From the attached map to the plaintiff’s
Documents, the Plaintiffs pieces of land are bordered by Block 3266 and 3270 and 3271
and two access roads on both sides. Is it possible to have a boundary with someone
who you do not share any boundary with in the first place? We submit that it is not
possible.
19. It is not in doubt that the two parcels of land are registered and each piece has its own
distinct title documents with measurements. Parties have each provided their title
documents and maps.
20. If the Plaintiff had any boundary dispute with 1st Defendant, he should have filed a
separate claim with the Registrar but that is not necessary since he does not share a
common boundary with the 1st Defendant.
21. The boundary is not an issue for determination in this matter at this stage. The plaintiff
does not even raise it. The defendant has not raised it neither as there is no Defence
 bringing out the issue clearly or at all. It is not a triable issue at the hearing of the main
suit.
22. In Mulu M’inyingi v County Government of Meru [2021] eKLR, the Appellate court in
dismissing the objection of this nature held that:
“…This Court cannot discern how the trial magistrate made the issue of
boundaries a subject of a Preliminary Objection when the same cannot even
qualify as a triable issue for determination in the main hearing. The trial
magistrate clearly misdirected himself in upholding the Preliminary Objection
dated 8th March 2017 and dismissed the primary suit. I find this Appeal merited
and the same is hereby allowed…”
23. Your Honour, from the foregoing, we submit that this matter is not a boundary dispute
and that claim serves no purpose in the resolution of this dispute.
ii. Whether the Notice of Preliminary Objection dated 28/10/2021 has merit?
24. This objection challenges the jurisdiction of this court to hear and determine this matter.
The locus classicus on jurisdiction is the celebrated case of Owners of the Motor Vessel
“Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 to the effect that jurisdiction is
everything to a court of law.

25. The jurisdiction of this Court flows from Art 162(2) (b) of the Constitution of Kenya,
2010, which is read together with the provisions of section 13(2) of the Environment
and Land Courts Act. The latter provides as follows;

“In exercise of its jurisdiction under Article 162(2) (b) of The Constitution, the
Court shall have power to hear and determine disputes—
a) relating to environmental planning and protection, climate issues, land use
planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and
other natural resources;
b) relating to compulsory acquisition of land;
c) relating to land administration and management;

d) relating to public, private and community land and contracts, choses in action
or other instruments granting any enforceable interests in land; and
e) any other dispute relating to environment and land
26. The Defendant seeks to challenge the honorable Court’s jurisdiction in this matter, citing
Section 18 of the Land Registration Act, 2012 (the Act) and Regulation 40 of Land
Registration (General) Regulations 2017 (Regulations), contending this is a boundary
dispute and that being a boundary dispute, it is only the Land registrar and not this
Court that has jurisdiction to hear and determine the same.
27. Section 18 of the Act goes:
18. Boundaries
(1) Except where, in accordance with section 20, it is noted in the register that
the boundaries of a parcel have been fixed, the cadastral map and any filed plan
 shall be deemed to indicate the approximate boundaries and the approximate
situation only of the parcel.
(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. 29
28. Section 18(2) of the Land Registration Act applies where the boundary dispute arises
and boundaries have not been fixed. However, in this instant case, the respective parcels
of land have their boundaries clearly demarcated and fixed. The Registrar would have
jurisdiction where the boundaries have not been fixed. In the instant case, the
boundaries have been fixed and therefore the Court has jurisdiction.
29. 1st Defendant’s objection that this Courts lacks jurisdiction as the suit is in the nature of
a boundary dispute which ought to be determined by the Land Registrar under Section
18(2) of the Land Registration Act is founded upon a total misunderstanding of the said
provision.
30. A reading of sections 18(1), 18(2) and 15 of the Land Registration Act clearly shows that
the Land Registrar can only determine disputes relating to boundaries to land where
boundaries are yet to be established, where land is unsurveyed or boundaries
undetermined.
31. The 1st Defendant has not demonstrated that the boundaries of the alleged plots are not
noted in the register to satisfy his claim under Section 18(3) of the Act. He has not placed
such evidence on record.
32. The Plaintiff clearly averred that the land was surveyed, report filed, boundaries fixed,
maps drawn and Certificates finally issued to the Plaintiff over the suit land. This is
enough to prove that the boundaries of the Plaintiff’s land was has already been
determined in accordance with the Act. Even in stating thus, we need to remember the
1st Defendant’s plots are not adjoined to the suit property. This is trespass.
33. The closest that Regulation 40 of the Regulations comes to this matter is 40(1) which
states:
40. (1) An interested person may apply to the Registrar for the ascertaining of a
missing boundary or a boundary in dispute under section l8 (3) of the Act in
Form LRA 23 set out in the Sixth Schedule.
34. Regulation 40 is concerned with re-establishment of a missing boundary and any
reading of the cited regulation is not framed in mandatory terms. The above assertion
that this matter is a boundary dispute is nowhere in the pleadings and the frantic efforts
by the 1st Defendant allegedly lie on paragraph 7 of the Plaint, in isolation of the rest of
the 15 paragraphs in the plaint. The said Paragraph 7 goes thus:
 “7. The plaintiff reported the matter to Embakasi Ranching Limited who had allocated
the plots to the plaintiff and offered to help sort out the matter of the boundaries but
the 1st Defendant snubbed all meetings and/or invitations to have the matter settled”
35. It is imperative to note that the said paragraph 7 was simply detailing and /or narrating
the history of the dispute herein and nothing more. It does not touch on what is actually
currently before this honorable court.
36. The Plaintiff submits that applying Section 18 of the Act to this case would mean that
the matter has to take two stages; one at the Land registrar, and another at this
honorable court as it is not within the powers of the registrar to grant any of the prayers
sought herein.
37. If the court was to uphold the preliminary objection, it would be nipping plaintiff’s case
in the bud, thus unseating the plaintiff from the seat of justice, and all the prayers will
have been forfeited.
38. In Nelly Atieno Oluoch v Damaris A Nyawalo & 2 others [2021] eKLR, the court cited
Thika Environment & Land Case 602 of 2017 Fredrick Nganga v Prof. Peter Mungai
Njuho where the Court stated as follows while dismissing a related Preliminary
Objection;
‘The Plaintiff has also sought for an order of permanent injunction and damages
for trespass. The above prayer falls under the jurisdiction of the Environment
and Land Court as provided by Section 13(2) of the Environment and Land Court
Act 2011….
The Plaintiff has brought a case for trespass which relates to land use and
boundaries. These are disputes mentioned in section 13(2) of the Environment
and Land Court Act 2011 and the Court has power to hear and determine them.
Therefore, this Court finds and holds that it has jurisdiction to hear and
determine the issues raised by the Plaintiff and not the Land Registrar.’
39. This is not (purely) boundary dispute, in Hudson Kulundu & 2 others v Martha
Chibetti & another, Kakamega ELC Case No. 57 OF 2019 [2020] eKLR the court held
that:
‘On perusal of the pleadings in this case the plaintiffs prayed for an order
directed at the defendants to open the access road. This seems to me to be
more than the issue of ownership and boundaries alone and does not fall
exclusively as envisage in Section 18 (2) of the Land Registration Act, 2012
which ousts the jurisdiction of the court where the dispute is purely boundary.’
40. In any case, the issue of the jurisdiction of this court is being challenged after the same
court has already, heard and determined an application and given its ruling. What
becomes of the ruling delivered herein on 24th August, 2021?
41. The circumstances in which a Preliminary Objection may be raised was explained by
the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd -vs- West End
Distributors Ltd (1969) EA 696, as follows:
“A Preliminary Objection is in the nature of what used to be a demurrer. It raises
a pure point of law which is argued on the assumption that all the facts pleaded
 by the other side are correct. It cannot be raised if any fact has to be ascertained
or if what is sought is the exercise of judicial discretion.”
42. The effect of a preliminary objection if upheld, renders any further proceedings before
the court impossible or unnecessary. Thus a preliminary objection may only be raised
on a “pure question of law”. To discern such a point of law, the Court has to be satisfied
that there is no proper contest as to the facts. The facts are deemed agreed, as they are
prima facie presented in the pleadings on record.
43. From the two conflicting positions held by the Plaintiff and the 1 st Defendant, it is clear
that this is actually not a boundary dispute. No party is contesting the boundaries of
the lands.
44. In Environment & Land Case 602 of 2017 - Fredrick Nganga Thuo v Peter Mungai
Njuho , the court made the following rendition:
“…The Plaintiff has brought a case of trespass, which relates to land use... These
are disputes mentioned in Section 13(2) of the Environment and Land Court Act
2011, and the Court has power to hear and determine them. Therefore this Court
finds and holds that it has jurisdiction to hear and determine the issues raised by
the Plaintiff and not the Land Registrar. Further the Plaintiff’s suit raises triable
issues and it is not an abuse of the court process.
For the above reasons, the Court finds and holds that the Defendants Notice of
Preliminary Objection dated 28th June 2017 is not merited. The said Notice of
Preliminary Objection of dismissed entirely with costs being in the cause.
45. The Court has, in determining this objection to find out if the 1st Defendant is occupying
L.R No. Nairobi Blocks 136/3268 and Block 136/3269 or they are rightfully occupying
blocks 136/3277 and 3278.
46. In Oraro vs. Mbaja [2005] 1 KLR 141 Ojwang, J (as he then was) expressed himself as
follows; -
“………a “Preliminary Objection” correctly understood, is now well defined as,
and declared to be, a point of law which must not be blurred with factual details
liable to be contested and in any event, to be proved through the processes of
evidence. Any assertion, which claims to be a Preliminary Objection, yet it bears
factual aspects calling for proof, or seeks to adduce evidence for its
authentication, is not, as a matter of legal principle, a true Preliminary Objection
which the Court should allow to proceed. Where a Court needs to investigate
facts, a matter cannot be raised as a preliminary point…Anything that purports
to be a Preliminary Objection must not deal with disputed facts, and it must not
itself derive its foundation from factual information which stands to be tested by
normal rules of evidence...”
47. The effect of the case law cited above means for one to succeed in putting up a
Preliminary Objection, it must meet the following criteria; it must be a pure point of
law; it must be pleaded by one party and admitted by the other; it must be a matter of
law which is capable of disposing the suit; must not be blurred by factual details calling
for evidence and finally must not call upon the Court to exercise discretion.
48. The 1st Defendant has not satisfied any of the requirements as required in the above
cited authorities.
49. In the Mukisa case (Supra) the Court discouraged such objections in the following clear
terms:
“…The improper raising of points by way of Preliminary Objection does nothing
but unnecessarily increase costs and, on occasion, confuse the issue. The
improper practice should stop…”
C. CONCLUSION
50. You Honour, this is not a (pure) boundary dispute to be determined by the Land
Registrar. The pleadings on record do not present this dispute as a boundary dispute.
Even if the court were to find boundary issues arise, The Registrar in not legally capable
of disposing of the issues herein conclusively. Section 18 of the Act does not apply.
51. Further the 1st Defendant does not share any common boundary with the Plaintiff.
52. The Preliminary Objection does not clearly or at all meet the legal threshold of a
competent and valid Preliminary objection. It is neither based on clear points of law,
nor on admitted facts by both parties. The facts are highly contested and the court, in
determining this preliminary objection may have to resort to investigate many facts
which have not been pleaded just yet. That is not the desire of a preliminary objection.
53. The 1st Defendant is simply employing delaying tactics in this matter. He was with an
opportunity to have contested the court’s jurisdiction at the earliest opportunity when
the application therein was being considered, at least to show good faith in this matter.
The 1st Defendant is enjoying the fruits of the ruling of this honourable, and cannot
instantly turn around to state that it lacks jurisdiction, because, it actually does have
jurisdiction.
54. We pray that the Preliminary Objection be dismissed with costs, and the matter be set
down for hearing of the main suit, as there are no interim orders, while at the same
time the 1st defendant continues to enjoy the fruits of his illegal occupation of the suit
land against at the expense and to the detriment of the Plaintiff.
We so Submit and pray.
Dated at NAIROBI this day of 2022

WANGA OBORA & ASSOCIATES

ADVOCATES FOR THE PLAINTIFF

DRAWN & FILED BY: TO BE SERVED UPON

Wanga Obora & Asscociates Advocates Njoroge ng’ang’a Advocates
Welkim House, Off Kangundo Road, Portal Hse, 4th floor
Ruai Town, 1st Floor,
P.O Box 58975-00200, Muindi Mbingu Street
NAIROBI. P.O Box 3494-00200
Email: [email protected]
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATES COURT AT NAIROBI
MILIMANI COMMERCIAL COURT
CAUSE NO. E.029 OF 2021
PETER MAKARA GAITHO PLAINTIFF
VERSUS
DAVID NJENGA KINUTHIA T/A PEHUCCI SCHOOL 1ST DEFENDANT
EMBAKASI RANCHING LIMITED 2ND DEFENDANT
PLAINTIFF’S LIST OF AUTHORITIES

NO. AUTHORITY PAGE

1. The Constitution of Kenya, 2010
2. Land Registration Act, 2012
3. Owners of Motor Vessel Lilian S
4. Mukisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd
(1969) EA 696
5. Oraro vs. Mbaja [2005] 1 KLR 141
6. Karisa Ngari Kombe v Esther Nzingo Kalume & Another [2020] eKLR, 1-3
the court disposed of the Preliminary objection similar to this one in the
following terms:
“…From the pleadings, it cannot be said that the case is
purely one of a boundary dispute as submitted by the
1st and 2nd defendants. From the pleadings the issues are At page 2
highly contested. I find and hold that the notice of
preliminary objection dated 22nd February 2019 does not
raise a pure point of law as it requires some investigations
of some facts. …. In my view, these are matters that are
fit and proper arguments in the substantive suit. For the
foregoing I am inclined to dismiss the notice of preliminary
objection…”

7. Mulu M’inyingi v County Government of Meru [2021] eKLR, the 4-7

Appellate court in dismissing the objection of this nature held that:
“…This Court cannot discern how the trial magistrate At page 6
made the issue of boundaries a subject of a Preliminary
Objection when the same cannot even qualify as a triable
issue for determination in the main hearing. The trial
magistrate clearly misdirected himself in upholding the
Preliminary Objection dated 8th March 2017 and dismissed
 the primary suit. I find this Appeal merited and the same
is hereby allowed…”

8. Nelly Atieno Oluoch v Damaris A Nyawalo & 2 others [2021] eKLR, the 8-12
court cited Thika Environment & Land Case 602 of 2017 Fredrick
Nganga v Prof. Peter Mungai Njuho where the Court stated as follows
while dismissing a related Preliminary Objection;
‘The Plaintiff has also sought for an order of permanent
injunction and damages for trespass. The above prayer At page 12
falls under the jurisdiction of the Environment and Land
Court as provided by Section 13(2) of the Environment
and Land Court Act 2011….
The Plaintiff has brought a case for trespass which relates
to land use and boundaries. These are disputes mentioned
in section 13(2) of the Environment and Land Court Act
2011 and the Court has power to hear and determine
them. Therefore, this Court finds and holds that it has
jurisdiction to hear and determine the issues raised by the
Plaintiff and not the Land Registrar.’

9. Hudson Kulundu & 2 others v Martha Chibetti & another, Kakamega 13-14
ELC Case No. 57 OF 2019 [2020] eKLR the court held that a when a
dispute is not purely of boundary nature:
‘On perusal of the pleadings in this case the plaintiffs
prayed for an order directed at the defendants to open At page 14
the access road. This seems to me to be more than the
issue of ownership and boundaries alone and does not
fall exclusively as envisage in Section 18 (2) of the Land
Registration Act, 2012 which ousts the jurisdiction of the
court where the dispute is purely boundary.’

10. Fredrick Nganga Thuo v Peter Mungai Njuho , the court made the 15-20
following rendition:
“…The Plaintiff has brought a case of trespass, which
relates to land use... These are disputes mentioned in
Section 13(2) of the Environment and Land Court Act At page 19
2011, and the Court has power to hear and determine
them. Therefore this Court finds and holds that it has
jurisdiction to hear and determine the issues raised by the
Plaintiff and not the Land Registrar. Further the Plaintiff’s
suit raises triable issues and it is not an abuse of the court
process.
For the above reasons, the Court finds and holds that the
Defendants Notice of Preliminary Objection dated 28th
June 2017 is not merited. The said Notice of Preliminary
 Objection of dismissed entirely with costs being in the
cause.

Dated at NAIROBI this day of 2022

WANGA OBORA & ASSOCIATES

ADVOCATES FOR THE PLAINTIFF

DRAWN & FILED BY: TO BE SERVED UPON:-

Wanga Obora & Asscociates Advocates Njoroge Ng’ang’a & Company Advocates
Welkim House, Off Kangundo Road,
Ruai Town, 1st Floor,
P.O Box 58975-00200,
NAIROBI.
Email: [email protected].