[2016] KEHC 2846 (KLR)
The court found that there was a valid consent order for the subdivision and transfer of land, which was adopted as an order of the court. No application had been made to set aside either the consent order or the surveyor's report. The respondent's dissatisfaction with the surveyor's report did not amount to a legal...
Source-derived case information.
- Citation
- [2016] KEHC 2846 (KLR)
- Parties
- Plaintiff: Alfred Khisa Munyang’anyí; Defendant: Florian Mukhwana Nyapara; Defendant: Felix Suto Mbaya
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 68 of 2009
- Procedural Posture
- Civil Suit / Ruling on Application to Enforce Consent Order and Effect Land Transfer
- Outcome
- Application allowed.
- Legal Topics
- Consent Orders, Land Subdivision, Transfer of Land, Surveyors Report
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alfred Khisa Munyang’anyí
Plaintiff
Florian Mukhwana Nyapara
Defendant
Felix Suto Mbaya
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Enforce Consent Order and Effect Land Transfer
Legal Issues
- 1 Whether the court should enforce the consent order for subdivision and transfer of land to the applicant.
- 2 Whether the surveyor's report, not having been set aside, is binding on the parties.
- 3 Whether the Deputy Registrar should be authorized to execute transfer documents on behalf of the 1st defendant.
Ratio Decidendi
The court found that there was a valid consent order for the subdivision and transfer of land, which was adopted as an order of the court. No application had been made to set aside either the consent order or the surveyor's report. The respondent's dissatisfaction with the surveyor's report did not amount to a legal basis for non-compliance, as the proper procedure would have been to challenge the report through a formal application. In the absence of such an application, the court held that the consent order and the surveyor's report must be given effect. Therefore, the application to have the Deputy Registrar execute the necessary transfer documents on behalf of the 1st defendant was...
Court Disposition
Application allowed.
Orders
- The Deputy Registrar is authorized to sign transfer forms, application for consent, and mutation forms on behalf of the 1st defendant in respect of land parcel No. E. Bukusu/S. Nalondo/1960 to effect the consent order dated 12/11/15.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL SUIT NO. 68 OF 2009 (OS)
ALFRED KHISA MUNYANG’ANYI...............................PLAINTIFF
VERSUS.
1. FLORIAN MUKHWANA NYAPARA
2. FELIX SUTO MBAYA.........................................DEFENDANTS
RULING
[1]. By a consent of the parties dated 12th November, 2015, the parties herein agreed that the Lands in dispute be surveyed so that the applicant shall have the land he is occupying and cultivating be hived out and its acreage determined with the first defendant paying for the same and having him apply for the land control board for subdivision and transfer the subdivided portion to the applicant.
This matter came for mention on 25/2/2014. This was a date agreed by the parties and the order was adopted as the order of the Court. There has been no application to set aside the surveyors report. The respondent herein has failed to honour his part of the bargain forcing the applicant herein to bring this application, praying that the Deputy Registrar of this court to sign transfer forms, application for consent and mutation forms on behalf of the 1st defendant in regard to land parcel No. E. Bukusu/S. Nalondo/1960 in order to give effect to the order issued on 12/11/15.
[2]. The Respondent filed a replying affidavit. He admits that he was part of the consent order and that the surveyor came on to the land. He avers that the surveyor was accompanied by one Brian E. Kubwa. That the Surveyor followed the directions of the applicant and he acted contrary to the order of the Court and hived off excessive land that was not being used by the applicant but by a third party one Florence Mukhwana Mukhebi. That the surveyors report is contrary to the court order.
[3]. There is no application to set aside the surveyors report filed herein. There is no application to set aside the adoption of that order of the Court. A surveyor report should not necessarily please all. I find the application merited the same is allowed as prayed.
Ruling read in Open court in presence of the Counsels.
Dated, Signed and delivered on 29th September, 2016.
S. MUKUNYA
JUDGE.
In the presence of:
Court Assistant – Joy
Mr. Murunga: For the Plaintiff/Applicant
Mr. Were: For the Defendant/Respondent