[2009] KEHC 2703 (KLR)
The court found that the clan Chairman's award did not resolve the substantive issues in dispute, as it merely recounted the events of the site visit without making determinations on the contested matters. Given the nature of the dispute—alleged annexation of land and the need to determine boundaries—the court held...
Source-derived case information.
- Citation
- [2009] KEHC 2703 (KLR)
- Parties
- Plaintiff: Daniel Wambua Muungui; Defendant: Simon Muungui
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2 of 2008
- Procedural Posture
- Civil Case / Ruling on Referral to Surveyor After Clan Arbitration Award
- Outcome
- Dispute referred to District Surveyor for report; no substantive orders made on merits.
- Legal Topics
- Land Adjudication, Boundary Disputes, Arbitration Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Wambua Muungui
Plaintiff
Simon Muungui
Defendant
Procedural Posture
Civil Case / Ruling on Referral to Surveyor After Clan Arbitration Award
Legal Issues
- 1 Whether the Defendant annexed a portion of parcel No. 1889 Thinu Adjudication Section and joined it to parcel No. 27 Thinu Adjudication Section.
- 2 Whether there is need to return the annexed portion as part of parcel No. 1889.
Ratio Decidendi
The court found that the clan Chairman's award did not resolve the substantive issues in dispute, as it merely recounted the events of the site visit without making determinations on the contested matters. Given the nature of the dispute—alleged annexation of land and the need to determine boundaries—the court held that the appropriate course was to direct the District Surveyor to visit the disputed parcels, clarify the issues, and file a report. This technical approach was necessary to provide a factual basis for any further orders, as the clan arbitration had failed to do so.
Court Disposition
Dispute referred to District Surveyor for report; no substantive orders made on merits.
Orders
- The District Surveyor shall visit the disputed land and clarify whether the Defendant annexed a portion of parcel No. 1889 and joined it to parcel No. 27, and whether the annexed portion should be returned to parcel No. 1889.
- The District Surveyor shall file a report within 60 days.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Civil Case 2 of 2008
DANIEL WAMBUA MUUNGUI .…………………… PLAINTIFF/APPLICANT
VERSUS
SIMON MUUNGUI …………………………… DEFENDANT/RESPONDENT
RULING
1. On 23/4/2009, this court referred the dispute herein to the Chairman, Amutei clan, Mitaboni Location, Mr Phillip Matindi and to arbitrate on the same with the help of 4 elders, two to be chosen by each side. On 29/6/2009, the Chairman filed his award.
2. On 6/7/2009, advocates appeared and Mr Makau applied that the Chairman’s award be expunged from the record as it was filed out of time and that the dispute should be referred to the District Surveyor and District Land Registrar. Mrs Nzei was of a different mind and was instructed to let the clan arbitrate on the matter. I was also shown a letter dated 23/6/2009 addressed to the clan Chairman in which Ms Onesmus N Makau & Co. Advocates acting for the Defendant seeking that the arbitral proceedings be called off and the matter referred to the District Surveyor.
3. I have carefully considered the Chairman’s award dated 24/6/2009 and sadly, it merely repeats what happened when the panel visited the disputed parcel of land and no decision on any contentions matter is made. The award is therefore unhelpful and cannot be the basis for this court to make any orders for or against any party.
4. In the event, whilst I will not expunge it from the record, as it has certain facts that are important, the dispute before me relates to the following questions;
i. whether the Defendant annexed a portion of parcel No. 1889 Thinu Adjudication Section and joined the annexed portion as part of No. 27 Thinu Adjudication Section.
ii. whether therefore there is need to return the annexed portion as part of parcel No. 1889 aforesaid.
5. These two questions can be addressed by the District Surveyor visiting the disputed portions and answering the above questions.
6 In the event, I agree that the District Surveyor should visit the disputed land and clarify the above two issues and thereafter file a report within 60 days.
7. Orders accordingly.
Dated and delivered at Machakos this 13thday of July2009.
ISAAC LENAOLA
JUDGE
In presence of: Mr Makau for Defendant
Mrs Nzei for Plaintiff
ISAAC LENAOLA
JUDGE