[2019] KEELC 1754 (KLR)
The court found that the dispute between the parties is fundamentally a boundary dispute concerning the demarcation between parcels Nyalenda “B” 928 and Kisumu/Nyalenda “B” 1540. The information sought by the plaintiffs is not within the defendants' possession or control, but rather within the statutory mandate of...
Source-derived case information.
- Citation
- [2019] KEELC 1754 (KLR)
- Parties
- Plaintiff: Isaac E. N. Okero; Plaintiff: Beatrice A. Okero; Defendant: Tom Soya Okwach; Defendant: Samwel Otieno Onyango
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 398 of 2015
- Procedural Posture
- Land and Property Dispute / Ruling on Interlocutory Application for Particulars and Directions
- Outcome
- Application for particulars declined; boundary determination referred to County Land Registrar and Surveyor.
- Judges
- TM Olando
- Legal Topics
- Boundary Disputes, Land Registry Procedure, Survey Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac E. N. Okero
Plaintiff
Beatrice A. Okero
Plaintiff
Tom Soya Okwach
Defendant
Samwel Otieno Onyango
Defendant
Procedural Posture
Land and Property Dispute / Ruling on Interlocutory Application for Particulars and Directions
Legal Issues
- 1 Whether the court should compel the defendants to provide particulars regarding identification of the disputed land parcels.
- 2 Whether the dispute is properly before the court or should be resolved by the County Land Registrar as a boundary dispute.
- 3 What is the appropriate procedure for resolving the boundary dispute between the parties.
Ratio Decidendi
The court found that the dispute between the parties is fundamentally a boundary dispute concerning the demarcation between parcels Nyalenda “B” 928 and Kisumu/Nyalenda “B” 1540. The information sought by the plaintiffs is not within the defendants' possession or control, but rather within the statutory mandate of the County Land Registrar and County Land Surveyor. The court declined to compel the defendants to provide the particulars and instead directed the County Land Registrar and County Land Surveyor to visit the disputed parcels and determine the boundary. Each party was granted liberty to appoint an independent surveyor to assist in the process, and the costs of the survey were to...
Court Disposition
Application for particulars declined; boundary determination referred to County Land Registrar and Surveyor.
Orders
- County Land Registrar Kisumu and County Land Surveyor Kisumu to visit the two disputed parcels and determine the boundary between Nyalenda “B” 928 and Kisumu/Nyalenda “B” 1540.
- Each party at liberty to appoint an independent surveyor to assist in the determination of the boundary.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KISUMU
ELC CASE NO. 398 OF 2015
ISAAC E. N. OKERO.......................................1ST PLAINTIFF
BEATRUCE A. OKERO.................................2ND PLAINTIFF
VERSUS
TOM SOYA OKWACH.................................1ST DEFENDANT
SAMWEL OTIENO ONYANGO.................2nd DEFENDANT
RULING
1. Isaac E. Okero and Beatrice A. Okero hereinafter referred to as the plaintiffs have come to court with application dated 27th July 2017, seeking certain particulars of names and ranks of officials at the County Land Registry who purportedly identified the parcel of land the 1st defendant occupies as being the parcel of land to which he possesses a title, the means by which the officials of the Ministry of which purported to identify the land applied in the identification. The date of communication of the identification and how it was recorded and the names of the Surveyor.
2. The 1st defendant on the other hand argues that this is a boundary dispute and therefore should be resolved by the County Land Registrar.
3. I have heard Mr. Mweisigwa learned Counsel for Plaintiffs. I have also heard Mr. Tom Soya Okkach, the 1st defendant and Samuel Otieno Onyango and do find that what the Plaintiffs seek if ascertained will resolve the dispute as this is basically a boundary dispute between Nyalenda “B” 928 and Kisumu/Nyalenda “B” 1540.
4. The defendants are not well placed to avail the information sought by the Plaintiff but the County Land Registrar and Count Land Surveyor are the right persons to avail the information.
5. I decline to grant the orders sought and do direct that the county land registrar Kisumu and the county land surveyor Kisumu do visit the two disputed parcels of land and do determine the boundary between Nyalenda “B” 928 and Kisumu/Nyalenda “B” 1540. Each party be at Liberty to appoint an independent surveyor to assist in the determination of the boundary. Parties to share the costs of the survey. Costs of the application in the cause.
Orders accordingly.
A. O. OMBWAYO
ENVIRONMENT & LAND
JUDGE
DATED AND DELIVERED THIS 20TH DAY OF SEPTEMBER, 2019.
In the presence of:
Plaintiff N/A
Defendant N/A
Counsel Mr. Mweisigwa for plaintiff
Mr. Tom Soya Okwatch for defendant
A. O. OMBWAYO
ENVIRONMENT & LAND
JUDGE