[2021] KEELC 4094 (KLR)

[2021] KEELC 4094 (KLR)

The court declined to grant the orders sought by the 3rd defendant/applicant because the surveyor's report, which formed the basis of the application, had not yet been formally produced in evidence by the appropriate witness. The court held that it would be unsafe to issue injunctive orders or adopt the report as judgment without it being properly introduced and tested in court. The absence of opposition from the plaintiff did not cure this evidentiary deficiency. The court emphasized the need for the parties to expedite the hearing of the main suit, directing that a priority hearing date be set and that the County Surveyor be summoned to produce the report as evidence. Only after such...

Citation
[2021] KEELC 4094 (KLR)
Parties
Plaintiff: Albert Boyo Kirui; Defendant: Benjamin Kiprotich A. Kigen; Defendant: Kipkurui Cherutich; Defendant: Erick Kiptum Kimosop; Defendant: The County Land Registrar, Trans-Nzoia; Defendant: The County Surveyor, Trans-Nzoia; Defendant: The Attorney General
Court
Environment and Land Court
Court Station
Environment and Land Court at Kitale
Jurisdiction
Kenya
Judgment Date
3 March 2021
Case Number
Environment & Land Case 61 of 2017
Procedural Posture
Notice of Motion / Ruling on Interlocutory Injunction Application
Outcome
application dismissed
Legal Topics
Interlocutory Injunctions, Land Boundary Disputes, Survey Reports, Encroachment, Adoption of Evidence
Source Language
English
Land and Property Interlocutory Injunctions Land Boundary Disputes Survey Reports Encroachment Adoption of Evidence

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 3 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Albert Boyo Kirui

Plaintiff

Benjamin Kiprotich A. Kigen

Defendant

Kipkurui Cherutich

Defendant

Erick Kiptum Kimosop

Defendant

The County Land Registrar, Trans-Nzoia

Defendant

The County Surveyor, Trans-Nzoia

Defendant

The Attorney General

Defendant

Procedural Posture

Notice of Motion / Ruling on Interlocutory Injunction Application

Legal Issues

  1. 1 Whether an interim injunction should issue restraining the plaintiff from interfering with the 3rd defendant's land pending hearing and determination of the suit.
  2. 2 Whether the report of the County Surveyor dated 5/7/2019 should be adopted as a judgment of the court.

Ratio Decidendi

The court declined to grant the orders sought by the 3rd defendant/applicant because the surveyor's report, which formed the basis of the application, had not yet been formally produced in evidence by the appropriate witness. The court held that it would be unsafe to issue injunctive orders or adopt the report as judgment without it being properly introduced and tested in court. The absence of opposition from the plaintiff did not cure this evidentiary deficiency. The court emphasized the need for the parties to expedite the hearing of the main suit, directing that a priority hearing date be set and that the County Surveyor be summoned to produce the report as evidence. Only after such...

Court Disposition

application dismissed

Orders

  • The application dated 20/1/2021 is rejected.
  • A priority hearing date for the main suit is set for 27/4/2021.