[2018] KEELC 4620 (KLR)
The court found that the central issue was the true location of the waterway and the actual boundaries of the parcels resulting from the subdivision of LR No. Trans-Nzoia/Suwerwa/387. Given the conflicting claims and the need for clarity on the official records, the court determined it was necessary to set aside the...
Source-derived case information.
- Citation
- [2018] KEELC 4620 (KLR)
- Parties
- Plaintiff: Eunice Wangare Gathaga; Plaintiff: John Anono Mundia; Defendant: Joseph Mureithi; Defendant: Alfred Obat; Defendant: Hellen Onyango Ofinyo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 86 of 2016
- Procedural Posture
- Land Case / Ruling on Interlocutory Application for Survey and Boundary Ascertainment
- Outcome
- Application allowed; previous order set aside; survey ordered; costs in the cause.
- Judges
- FM Njoroge
- Legal Topics
- Boundary Disputes, Land Survey, Title Deeds, Land Subdivision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eunice Wangare Gathaga
Plaintiff
John Anono Mundia
Plaintiff
Joseph Mureithi
Defendant
Alfred Obat
Defendant
Hellen Onyango Ofinyo
Defendant
Procedural Posture
Land Case / Ruling on Interlocutory Application for Survey and Boundary Ascertainment
Legal Issues
- 1 Whether the plaintiffs have unlawfully extended the boundaries of their parcels to include land parcel Trans Nzoia/Suwerwa/422.
- 2 Whether the County Surveyor should be directed to ascertain the actual boundaries of the disputed parcels.
- 3 Whether the previous court order should be set aside to facilitate a proper survey and determination of the waterway and boundaries.
Ratio Decidendi
The court found that the central issue was the true location of the waterway and the actual boundaries of the parcels resulting from the subdivision of LR No. Trans-Nzoia/Suwerwa/387. Given the conflicting claims and the need for clarity on the official records, the court determined it was necessary to set aside the previous order and grant the application for a survey. The County Surveyor was directed to ascertain and report on the boundaries and the waterway, as this would provide the factual basis required for the just resolution of the dispute. Each party was ordered to bear their own costs for the application, reflecting the interlocutory nature of the relief and the need for an...
Court Disposition
Application allowed; previous order set aside; survey ordered; costs in the cause.
Orders
- The order of 24/7/2016 as extended is set aside.
- Prayer No.1 of the application dated 8/9/2016 is granted: the County Surveyor, Trans Nzoia County, shall visit, survey, and ascertain the actual boundaries of the plaintiffs' lands (LR Nos. Trans-Nzoia/Suwerwa/429 and 431).
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KITALE
LAND CASE NO. 86 OF 2016
EUNICE WANGARE GATHAGA
JOHN ANONO MUNDIA..............................................PLANTIFFS
VERSUS
JOSEPH MUREITHI...........................................1ST DEFENDANT
ALFRED OBAT...................................................2ND DEFENDANT
HELLEN ONYANGO OFINYO............................3RD DEFENDANT
R U L I N G
1. The defendants’ application dated 8/9/2016 seeks an order that pending the hearing and determination of the main suit herein, this honourable court be pleased to direct the County Surveyor Trans Nzoia County to visit survey and ascertain the actual boundaries of the plaintiffs' lands (sic) Title Numbers LR Numbers Trans-Nzoia/Suwerwa/429 and 431.
2. The grounds upon which the application is made are stated at its foot. In summary they are that the plaintiffs have extended their land, boundaries for Plots Nos. 429and431 upto the River Nzoia’s banks and in the process they have included all that land known as Trans Nzoia/Suwerwa/422 in their land yet the latter parcel was never sold to the plaintiffs. In addition, the plaintiffs are alleged to have subdivided the said land and there is danger that they may dispose of it yet Parcel No.422 still belongs to the estate of the late Eliud Habel Onyango.
3. The 2nd plaintiff, duly authorized by the 1st plaintiff has sworn a replying affidavit dated 23rd September 2016 on behalf of the 1st plaintiff and on his own behalf. He avers that as at the time of his death, the late Eliud Habel Onyango had disposed of the whole of Trans Nzoia/Suwerwa/387 and migrated to Kisumu with his family and the 3rd defendant does not therefore have any interest in the suit land that would entitle her to a survey. It is also notable that on 7/9/16, the 1st plaintiff filed a further affidavit in “response to the contents of the 3rd defendant's replying affidavit”. She avers that she and the 2nd plaintiff have kept to their respective plots and have not trespassed into Plot No. 422. The 1st plaintiff avers that the defendants/Respondents intend the Surveyor to alter the waterway using a map other than the 1968 map. However, the alleged 1968 map is not exhibited.
4. I have examined at the pleadings and other documents filed in this suit. In summary the issues involved include the true location of a waterway, the true extent of the boundaries of the parcels that resulted from the subdivision of the land parcel LR No.Trans-Nzoia/Suwerwa/387 and whether the plaintiffs have illegally extended the boundaries of plots Nos. Trans-Nzoia/Suwerwa/431 andTrans-Nzoia/Suwerwa/429 so as to include LR. Trans-Nzoia/Suwerwa/422.
5. I am alive to the fact that there is an order which was issued by this court on 24/5/2016 and which has been in the past extended from time to time. In my view it is necessary for the proper position that conforms with the official records relating to the waterway and the subdivision of Plot No.Trans Nzoia/Suwerwa/387 to be made clear to the court to enable the determination of this matter. In that regard, it is necessary to set aside the order of this court made on 24/7/16 and extended from time to time to the extent that such setting aside will enable the position desired to be put forward clearly.
6. I therefore set aside the order of 24/7/2016 as extended from time to time and in place thereof I hereby grant the Prayer No.1 in the application dated 8/9/2016. Besides, the County Surveyor shall submit a report clearly showing the proper position of the waterway mentioned in this suit within 60 days of this order. Each party shall bear their own costs of the application in any event.
Dated, signed and delivered at Kitale on this 29th day of January, 2018.
MWANGI NJOROGE
JUDGE
29/01/2018
Coram - before Mwangi Njoroge Judge
Court Assistant - Isabellah
COURT
Ruling read in open court in the presence of Ms. Sitati for the Plaintiffs/Respondents and in the absence of any representative for the Defendants/Applicants.
MWANGI NJOROGE
JUDGE
29/01/2018