[2018] KEELC 905 (KLR)
Although the survey established that there was encroachment by land parcel KERICHO/KIPCHIMCHIM/146 onto the plaintiff's land, the court found that the defendants, being beneficiaries of the estate of the deceased registered proprietor and not having obtained letters of administration, lacked the legal capacity to be...
Source-derived case information.
- Citation
- [2018] KEELC 905 (KLR)
- Parties
- Plaintiff: Grace Maritim; Defendant: David Bor; Defendant: Joel Bor; Defendant: Joseph Bor; Defendant: Hellen Bor
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 44 of 2015
- Procedural Posture
- Land and Property Dispute / Ruling on Suit After Surveyor's Report and Application to Stop Re Survey
- Outcome
- suit struck out with costs to the defendants
- Judges
- DO Ogal
- Legal Topics
- Boundary Disputes, Land Registration, Encroachment, Capacity to Sue
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Maritim
Plaintiff
David Bor
Defendant
Joel Bor
Defendant
Joseph Bor
Defendant
Hellen Bor
Defendant
Procedural Posture
Land and Property Dispute / Ruling on Suit After Surveyor's Report and Application to Stop Re Survey
Legal Issues
- 1 Whether the defendants have encroached on the plaintiff's land parcel KERICHO/KIPCHIMCHIM/2723.
- 2 Whether the court can issue orders against defendants who lack legal capacity due to the registered proprietor being deceased and no letters of administration having been taken out.
Ratio Decidendi
Although the survey established that there was encroachment by land parcel KERICHO/KIPCHIMCHIM/146 onto the plaintiff's land, the court found that the defendants, being beneficiaries of the estate of the deceased registered proprietor and not having obtained letters of administration, lacked the legal capacity to be sued. Consequently, the court could not issue substantive orders against them. The suit was therefore struck out with costs to the defendants due to the plaintiff's failure to sue parties with proper legal standing.
Court Disposition
suit struck out with costs to the defendants
Orders
- The plaintiff's suit against the defendants is struck out.
- The plaintiff shall pay costs to the defendants.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KERICHO
E.L.C CASE NO. 44 OF 2015
GRACE MARITIM....................................................................PLAINTIFF
VERSUS
DAVID BOR......................................................................1ST DEFENDANT
JOEL BOR.......................................................................2ND DEFENDANT
JOSEPH BOR..................................................................3RD DEFENDANT
HELLEN BOR.................................................................4TH DEFENDANT
RULING
1. The plaintiff herein filed suit against the defendants claiming that the defendants had encroached on her land parcel number KERICHO/KIPCHIMCHIM/2723 which borders land parcel number KERICHO/KIPCHIMCHIM/146 which is occupied by the defendants.
2. The defendants filed a joint defence in which they stated that land parcel no. KERICHO/KIPCHIMCHIM/146 is registered in the name of their late father STEPHEN KIPLANGAT CHELOGOI and denied that they have encroached on the plaintiff’s land.
3. Before the matter could be set down for hearing, both parties agreed that this was a boundary dispute that could be resolved by the District Surveyor and Land Registrar visiting the suit land to determine the boundary for purposes of establishing if there is encroachment by either party. In line with section 18 (2) and 19 of the Land Registration Act, the court ordered the Land Registrar and District Surveyor to visit the suit land in the presence of both parties , determine the boundary and prepare a report.
4. The District Surveyor visited the suit land on 27th March 2018 but before he could file his report in court the plaintiff complained about the findings of the surveyor and insisted that a second survey be conducted. This prompted the defendants to move the court on 16th April 2018 for an order to stop the District Surveyor from re-surveying the suit land before filing a report of the earlier survey.
5. Pursuant to the said application the court ordered the District Surveyor to file a report of the survey conducted on 27th March 2018. According to the survey that was conducted, land parcel number KERICHO/KIPCHIMCHIM/146 has slightly encroached on land parcel number KERICHO/KIPCHIMCHIM/2723 which has since been divided into three parcels of land namely; KEERICHO/KIPCHIMCHIM/339,6792 and 6793. The boundary between parcels no 146 and 6792 is the one in dispute. It was found that land parcel no. KEERICHO/KIPCHIMCHIM/146 had encroached onto land parcel no. KERICHO.KIPCHIMCHIM/6792 by 5 metres at the widest point and 1. 6 metres at the narrowest point.
6. Even though the fact of encroachment has been established by the surveyor, it is common ground that land parcel no. KERICHO/KIPCHIMCHIM/146 still registered in the name of the defendants’ late father and there is no evidence that letters of administration have been taken out. In the circumstances, the court cannot issue orders against parties who have no legal capacity to be sued.
7. Attempts to get the parties to settle this matter out of court have been unsuccessful. I therefore have no option but to strike out the plaintiff’s suit against the defendants with cost to the defendants.
Dated, signed and delivered at Kericho this 13th day of November 2018.
..............................
J.M ONYANGO
JUDGE