[2009] KEHC 784 (KLR)
The court found that the report filed by the District Land Registrar, with the involvement of the District Surveyor as evidenced in the report, sufficiently determined the boundary between the parties' parcels of land. The insistence on a separate report by the Surveyor was deemed a technicality that did not affect...
Source-derived case information.
- Citation
- [2009] KEHC 784 (KLR)
- Parties
- Plaintiff: Ezekiel Nyamweno; Defendant: James Bundi Gitamo; Defendant: Land Registrar Nyamira
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 51 of 1992
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Boundary Report
- Outcome
- application dismissed with costs
- Legal Topics
- Land Boundary Disputes, Land Registration, Survey Reports, Implementation of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ezekiel Nyamweno
Plaintiff
James Bundi Gitamo
Defendant
Land Registrar Nyamira
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Boundary Report
Legal Issues
- 1 Whether the boundary report filed by the District Land Registrar and Surveyor is valid and capable of implementation.
- 2 Whether the absence of a separate report by the District Surveyor invalidates the boundary determination.
- 3 Whether the application to set aside the report should be allowed.
Ratio Decidendi
The court found that the report filed by the District Land Registrar, with the involvement of the District Surveyor as evidenced in the report, sufficiently determined the boundary between the parties' parcels of land. The insistence on a separate report by the Surveyor was deemed a technicality that did not affect the substance of the determination. The court held that the report was capable of implementation and that the application to set it aside was without merit. The application was therefore dismissed with costs to the plaintiff.
Court Disposition
application dismissed with costs
Orders
- The application to set aside the boundary report is dismissed with costs.
- The boundary report filed by the District Land Registrar stands and is to be implemented.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Civil Case 51 of 1992
EZEKIEL NYAMWENO………………………………PLAINTIFF
-VERSUS-
JAMES BUNDI GITAMO
LAND REGISTRAR NYAMIRA………..………..DEFENDANTS
R U L I N G
When the parties were in court on 7/4/2008 they agreed that the dispute would be resolved by the determination of
“the position of the boundary between parcels Nos West Mugirango/Bosamaro East/598 and 597”.
They agreed to have the District Land Registrar Kisii and District Land Surveyor Kisii to “Visit the disputed parcels to determine the common boundary” and to file respective reports. The plaintiff is owner of West Mugirango/BosamaroEast/598 and the 1 st defendant is owner of WestMugirango/Bosamaro East/597. The report shows the extent of either parcel, and the boundary between them has been indicated. They show that the 1 st defendant has annexed part of plaintiff’s land and is using it.
The application was brought by the 1 st defendant to have the report set aside on basis that it is incapable of implementation. The other reason is that the District surveyor did not file any report and therefore that the court order has not been complied with. It is alleged that the District Land Registrar’s report did not solve the boundary dispute. Mr. Masese presented the application which was opposed by Mr. Soire for the plaintiff.
The report filed is signed by the District Land Registrar Kisii/Gucha, but clearly shows the determination of the boundary was done by him and the surveyor. The surveyor is mentioned severally in the report as having undertaken the survey work that, together with the evidence of the parties, led to the conclusions. It would be a purely technical, and unhelpful, issue for the 1st defendant to insist that the District Surveyor should have filed a separate report. Indeed, in the supporting affidavit that he swore he did not allege that the exercise was conducted without the surveyor.
I find the report has determined the boundary between the parties and is capable of implementation. The application is therefore dismissed with costs.
Dated, signed and delivered at Kisii this 11th day of November,2009
A.O.MUCHELULE
JUDGE
11/11/2009
11/11/2009
Before A.O.Muchelule-J
Court clerk-Mongare
Mr. Soire-present
Mr. Masese –present
Parties-present
COURT: Ruling in open court.
A.O.MUCHELULE
JUDGE
11/11/2009