[2017] KEELC 1962 (KLR)
The court found that the application was unopposed and merited. Given the conflicting claims regarding occupation and boundaries of the suit land, and in the interest of a fair and just determination, the court exercised its discretion under the Land Registration Act to order the District Land Registrar and Surveyor...
Source-derived case information.
- Citation
- [2017] KEELC 1962 (KLR)
- Parties
- Plaintiff: Enos Orony Omollo; Defendant: Richard Otieno Dande
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 278 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application
- Outcome
- Application allowed as prayed (orders 1 to 4 granted).
- Judges
- GMA Ongondo
- Legal Topics
- Boundary Disputes, Adverse Possession, Land Registration, Survey and Demarcation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Enos Orony Omollo
Plaintiff
Richard Otieno Dande
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the District Land Registrar and Surveyor should be ordered to ascertain actual occupation of Land Parcel No. KAMAGAMBO/KABUOR/3565.
- 2 Whether the District Land Registrar and Surveyor should determine and fix the original boundaries of the suit land.
- 3 Whether a report should be filed within a fixed duration regarding occupation and boundaries.
Ratio Decidendi
The court found that the application was unopposed and merited. Given the conflicting claims regarding occupation and boundaries of the suit land, and in the interest of a fair and just determination, the court exercised its discretion under the Land Registration Act to order the District Land Registrar and Surveyor to visit the land, ascertain occupation, and fix boundaries. The court further directed that a report be filed within 30 days and that the applicant bear the costs of the exercise. The orders sought were granted as they would facilitate the just, fair, and speedy determination of the suit.
Court Disposition
Application allowed as prayed (orders 1 to 4 granted).
Orders
- District Land Registrar and District Land Surveyor, Migori County to visit Land Parcel No. KAMAGAMBO/KABUOR/3565 to ascertain whether the respondent is in actual occupation of the suit land.
- District Land Registrar and District Land Surveyor, Migori County to determine and fix the original boundaries of the suit land in accordance with title deeds.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MIGORI
ELC NO. 278 OF 2017
(Formerly KISII ELC CASE 552 OF 2015)
ENOS ORONY OMOLLO………………………………PLAINTIFF/RESPONDENT
VERSUS
RICHARD OTIENO DANDE………………………….DEFENDANT/RESPONDENT
RULING
1. By a Notice of Motion dated 21/7/2016 the Applicant/Defendant prays for the following orders :-
a. THAT the Honourable Court be pleased to grant orders to the District Land Registrar and District Land Surveyor, Migori County to move into the Land Parcel No. KAMAGAMBO/KABUOR/3565 to ascertain whether the Respondent is in actual occupation of the suit land;
b. THAT the Honourable court do grant Orders to the District Land Registrar and District Land Surveyor Migori County to move into the Land Parcel No. KAMAGAMBO/KABUOR/3565 to determine and fix the original boundaries of the suit land in accordance with title deeds;
c. THAT the Honourable court do fix a duration within which the report from the District Land Surveyor, Migori County should be filed in court;
d. THAT the cost involved for the exercise be borne by the applicant herein.
e. THAT Costs of this application be in the cause.
2. The Defendants affidavit in support of the notice of Motion based on grounds 1 to 4. These grounds are:-
1. THATsince the Respondent/plaintiff insists that he has been in occupation of Land Parcel No. KAMAGAMBO/KABUOR/3565 for the a period of over 12 years and owns the same by way of adverse possession, while the applicant/defendant insists that parcel No. KAMAGAMBO/KABUOR/3565 is vacant and if there are any houses, the same have been built outside the boundaries of the suit land. It will therefore be fair and just that the land Surveyor visit the suit parcel of land and determine who is in actual occupation of Land Number KAMAGAMBO/KABUOR/3565;
2. THAT since the applicant claims that he is in actual occupation and possession of land parcel No. KAMAGAMBO/KABUOR/3565; it is just and fair that upon the District Land Surveyor making his findings and determination, a report be made and filed before court in respect to who is in actual occupation of the suit land;
3. THAT the respondent/plaintiff has gone ahead to remove the fence erected by the applicant on Land Parcel No. KAMAGAMBO/KABUOR/3565 and therefore it is only fair and just that the Land Surveyor visits the parcel of land and ascertain if the original boundaries of the land are still intact and if not determine and fix the boundaries;
4. THAT granting the orders sought herein to the applicant will further the just, fair and speedy determination of this suit by the Honourable court;
3. There is no objection to the Notice of Motion by Omotto for the Plaintiff/Respondent. Sections 18, 19 and 20 of the Land Registration Act 2012applicable. I find the Notice of Motion unchallenged and merited in the circumstances.
4. I therefore allow orders 1 to 4 sought by the respondent accordingly.
5. The duration sought in (c) above shall be 30 days from the date hereof.
DELIVERED, SIGNED and DATED in open court at MIGORI this 20thday of July 2017.
G.M.A. ONGONDO
JUDGE
In presence of :-
Mr. Omotto counsel for the plaintiff
Mr. O. Otieno counsel for defendant
Tom – Court Assistant/Clerk
G.M.A. ONGONDO
JUDGE