https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4082

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT NAKURU** **ELC CASE NO. E032 OF 2025** **GRACE CHEPTOO CHEPKONGA………………………..1ST PLAINTIFF** **ANDREW KIPTOO CHEPKONGA……………….………..2ND PLANTIFF** **VERSUS** **SHAMIRA CHEPKEMEI CHELANGA…………………….DEFENDANT** **-CONSOLIDATED WITH-** **ELC CASE NO. E057 OF 2025** **GEOFREY KIPKEMBOI LELEI………………..……..……Isr PLAINTIFF** **VERSUS** **SHAMIRA CHEPKEMEI CHELANG'A…………..……1ST DEFENDANT** **BONIFACE WANGOMBE TIA MWENZETU AGENCIES………….………………………………..…….2ND DEFENDANT** **GRACE CHEPTOO CHEPKONGA……………..………3RD DEFENDANT** **ANDREW KIPTOO CHEPKONGA………….………….4TH DEFENDANT** **R U L I N G** 1. This ruling is in respect of the Notice of Motions dated 13th March 2026 and 14th March 2026. 2. The Notice of Motion dated 14th March 2026 is brought under **Articles 40 and 159 of the Constitution of Kenya, 2010, Section 1A,1B and 3A of the Civil Procedure Act, Cap 21 Laws of Kenya, Order 1 Rule 10 and Order 51 Rule 1 of the Civil Procedure Rules and all enabling provisions of he Law).** 3. It seeks orders:- 4. **Spent** 5. **Spent** **(c ) That the Court be pleased to set aside and/or** **decline to adopt the Regional Surveyor’s report** **dated 3rd November, 2025 and or further expunge it from its record.** **(d) That the court be pleased to order for a fresh survey to be conducted by the Director of Surveyors in In compliance with the order of 23rd September,2025, in the presence of all parties and their advocates.** **(e) That the Court be pleased to join the Director of** **Surveyor as a Defendant in this suit.** 1. The grounds are on the face of the Application and are set out in paragraph 1 to 19. 2. The application is supported by the affidavit of Shamira Chelang’a the 1st Defendant/Applicant sworn on the 14th March 2026. 3. The Notice of Motion dated 13th March 2026, by the 2nd Defendant (in the consolidation suit) seeks the same orders. 4. The Applications are opposed. There is a Replying Affidavit sworn by Andrew Kiptoon Chepkonga, the 2nd Plaintiff on the 30th April 2026. There is also a Replying Affidavit sworn by Grace Cheptoo Chepkonga on the 21st May 2026. 5. On the 6th May 2026 the court with the consent of the parties directed that the Notice of Motion be canvassed by way of written submissions. 6. It is the 1st Defendant’s submission that she is dissatisfied with the manner in which the former Regional Surveyor conducted himself during and after the exercise of the 31st October 2025. That the said Regional Surveyor appeared to have a premeditated outcome. 7. She prays that the Report be found to be inaccurate, unreliable, and incapable of forming a proper basis for the determination of the disputes before Court. She also prays that the Director of Surveys be enjoined as a defendant to the suit so that the Court do effectively and completely adjudicate upon and settle all questions involved in the suit. 8. It is the 2nd Defendant’s submission that the procedure adopted by the Regional Surveyor created a reasonable apprehension of partiality and denied the parties an equal opportunity to participate in the exercise. He prays that the same be expunged from the Court record. 9. The 1st Plaintiff submitted that the two-applications lack merit and ought to be dismissed with costs. 10. The 2nd Plaintiff submitted that the Court Order that caused the Regional Surveyor to visit the suit properties was procured by consent in the presence of the Advocates on record and cannot be challenged. 11. I have considered the Notice of Motions, the affidavits in support, the responses thereto, the written submissions and the authorities cited. The issue for determination is whether the applications are merited. 12. It is the 1st and 2nd Defendant’s contention that the survey exercise was conducted in a manner that was not impartial. That the same contains material inconsistences, inaccuracies and deliberate misrepresentations all made in favour of the Plaintiffs. 13. I note that the order to undertake the survey was procured through consent. However, it will not be of no use to the court if some parties are not satisfied with the manner in which it was conducted. 14. The objective of the court is to do justice to all parties. 15. I find that there is need to undertake the survey so that all those issues will be resolved. 16. The upshot of the matter is that, I find merit in the said applications and I grant the orders sought namely:- 17. **That the Regional Surveyor’s report dated 3rd November 2025 is hereby set aside and /or expunged from the court record.** 18. **That the Director of Surveys is hereby enjoined as defendant in this suit and is directed to file the defence and all other documents within 30 days.** 19. **That a fresh survey be conducted by the Director of Surveys in compliance with the Orders of 23rd September 2025, in the presence of all parties and their Advocates within 60 days.** 20. **That costs of the applications do abide the outcome of the main suit.** **Ruling dated, signed and delivered virtually at Nakuru this 2nd day of July 2026.** **L. KOMINGOI** **JUDGE** **IN PRESENCE OF:-** Mr. Karanja Mbugua for 1st Plaintiff No appearance for 2nd plaintiff Mr. Opar for the 1st Defendant Mr. Ratemo for the 2nd Defendant No appearance for the 3rd Defendant Court Assistant : Irene/Derrick