[2018] KEELC 1616 (KLR)
The court found that the registrar's and surveyor's report was clear and unanimous in its finding that the plaintiff had encroached on the defendant's land. The court held that the report substantially settled the dispute and, pursuant to section 16(1) of the Land Registration Act, adopted the report as the judgment...
Source-derived case information.
- Citation
- [2018] KEELC 1616 (KLR)
- Parties
- Plaintiff: Chemoiwa Ole Sayielel; Defendant: Joseph Saitian
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 323 of 2017
- Procedural Posture
- Land Dispute / Ruling on Registrar's Report and Boundary Determination
- Outcome
- Report of the registrar and surveyor adopted as judgment; boundaries to be fixed as per report; each party to bear own costs.
- Judges
- MN Kullow
- Legal Topics
- Boundary Disputes, Land Registration, Encroachment, Survey Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chemoiwa Ole Sayielel
Plaintiff
Joseph Saitian
Defendant
Procedural Posture
Land Dispute / Ruling on Registrar's Report and Boundary Determination
Legal Issues
- 1 Whether the plaintiff has encroached on the defendant's land parcels as alleged.
- 2 Whether the registrar's and surveyor's report should be adopted as the judgment of the court.
- 3 What orders should issue regarding the fixing of boundaries and costs.
Ratio Decidendi
The court found that the registrar's and surveyor's report was clear and unanimous in its finding that the plaintiff had encroached on the defendant's land. The court held that the report substantially settled the dispute and, pursuant to section 16(1) of the Land Registration Act, adopted the report as the judgment of the court. The court ordered the registrar and surveyor to proceed and fix the boundaries as determined in the report and directed that each party bear its own costs, as the suit was determined on the basis of the registrar's and surveyor's findings.
Court Disposition
Report of the registrar and surveyor adopted as judgment; boundaries to be fixed as per report; each party to bear own costs.
Orders
- Land parcel Trans Mara/Ololchani/585 and 586 have encroached on land parcel No. 946/945.
- The Registrar and the Surveyor Narok County to proceed and fix the boundaries as determined by them within the next 45 days.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC CAUSE NO. 323 OF 2017
FORMERLY KISII NO. 103 OF 2014
CHEMOIWA OLE SAYIELEL.....................................................PLAINTIFF
VERSUS
JOSEPH SAITIAN.....................................................................DEFENDANT
RULING
This Ruling is in respect of a report by the Registrar that following an order of the court to determine the boundaries between land parcel No. Trans Mara/Ololchani/585,586 and Trans Mara/Ololchani/946 and 945.
In the report the Registrar visited the land in the presence of the parties and prepared a report which was availed to the parties and they made their respective submissions.
Counsel for the Plaintiff urged the court not to adopt the report but allow the same to be produced by him during the hearing of the suit. On the other report the Defendant’s advocate initiated that the court has only to use it during the trial. He further stated that the report substantially determines the issue between the parties. He pointed out that the registrar observed that there was encroachment on the Defendant’s land and it actually determines the boundaries.
I have read the report and the submissions made by the counsel for the parties and it is quite clear that the registrar and the surveyor were definite in determining the actual boundaries and they were unamous in their finding that the Plaintiff had encroached on the defendant’s land.
Pursuant to the provisions of sections 16(1) of the Land Registration Act which provide as follows:-
“The Office or authority responsible for the survey of land may rectify the line or position of any boundary shown on the cadastral map based on an approved subdivision plan, and such correction shall not be effected except on the instructions of the Registrar, in writing, in the prescribed form, and in accordance with any law relating to subdivision of land that is for the time being in force”.
It is my finding that the report substantially settles the dispute and I will therefore adopt the same as a judgement of the court in the following terms:-
1. That land parcel Trans Mara/Ololchani/585 and 586 have encroached on land parcel No. 946/945.
2. That the Registrar and the Surveyor Narok County do proceed and fix the boundaries as determined by them within the next 45 days.
3. That since the suit was determined on the report by the registrar and surveyor I order that each party bear its costs.
DATED, SIGNED and DELIVERED in open court atNAROKon this27thday of September, 2018
Mohammed Noor Kullow
Judge
27/9/18
In the presence of:-
CA:Chuma/Kimiriny
Mr Morintat for the plaintiff
Mr Adala holding brief for Ogutu