[2022] KEELC 2071 (KLR)
The court found that the plaintiff had established sufficient grounds for the grant of an order directing the County Surveyor to survey and establish the extent of the alleged encroachment on Kilifi/Mtwapa/2147. The application was unopposed, and there was no evidence of prejudice to the defendants if the order was...
Source-derived case information.
- Citation
- [2022] KEELC 2071 (KLR)
- Parties
- Plaintiff: James Chuma Lugo; Defendant: Fuaad Mohamed; Defendant: Zainab Ali
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 215 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Survey Order
- Outcome
- interlocutory application granted (prayer two); costs in the cause
- Judges
- NA Matheka
- Legal Topics
- Land Ownership Dispute, Encroachment, Survey Orders, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Chuma Lugo
Plaintiff
Fuaad Mohamed
Defendant
Zainab Ali
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Survey Order
Legal Issues
- 1 Whether the plaintiff is entitled to an order for the County Surveyor to survey and establish the extent of alleged encroachment on Kilifi/Mtwapa/2147 by the defendants.
- 2 Whether granting the survey order would prejudice the defendants.
Ratio Decidendi
The court found that the plaintiff had established sufficient grounds for the grant of an order directing the County Surveyor to survey and establish the extent of the alleged encroachment on Kilifi/Mtwapa/2147. The application was unopposed, and there was no evidence of prejudice to the defendants if the order was granted. The court held that a surveyor's report was necessary for the just determination of the dispute and would assist in clarifying the real issues between the parties. Accordingly, the court exercised its discretion to grant the order sought in prayer two of the application, with costs to be in the cause.
Court Disposition
interlocutory application granted (prayer two); costs in the cause
Orders
- The County Surveyor, Kilifi, is to survey and establish the extent of encroachment on the parcel of land known as Kilifi/Mtwapa/2147 by the defendants.
- Costs of the application to be in the cause.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
ELC CASE NO. 215 OF 2014
JAMES CHUMA LUGO.........................................................................PLAINTIFF
-VERSUS-
FUAAD MOHAMED................................................................... 1ST DEFENDANT
ZAINAB ALI.................................................................................2ND DEFENDANT
RULING
The application is dated 7th October 2021 and is brought under Section 1A, 1B, 3, 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules 2010 seeking the following orders;
a) That the application herein be certified as urgent and service be dispensed with in the first instance.
b) That the honourable court be pleased to order that the County Surveyor, Kilifi, to survey and establish the extent of encroachment on the parcel of land known as Kilifi/Mtwapa/2147, by the defendants.
c) That costs of the application be provided for.
It is based on the grounds that the plaintiff/applicant is the registered owner of a parcel of land a parcel of land known as Kilifi/Mtwapa/2147. That the 1st defendant did encroach into the suit parcel of land and fenced off a considerable chunk; approximately 2 acres, on allegations that the same forms part of his land Kilifi/Mtwapa/3391. That the plaintiff’s effort to have the suit parcel of land surveyed by a private surveyor have not been successful in view of the fact the 1st defendant fenced off the portion of the suit parcel of land he alleges to be his. That a surveyor’s report is the only way to establish the extent of the encroachment on the suit parcel of land. That this matter is scheduled to come up for hearing on 18th November, 2021 that unless the orders sought herein are granted the matter shall proceed for hearing on the aforementioned date without the benefit of a surveyor’s report. That a surveyor’s report is vital in the circumstances of this suit as it shall bring out the real issue in dispute between the parties herein and assist the honourable court to arrive at a just determination of the suit. That whereas no prejudice shall be occasioned on the defendants if the orders sought herein are granted, the plaintiff shall stand prejudiced if the orders sought herein are not granted. That it is the interest of justice that the application herein is allowed as prayed.
This court has considered the application and submissions therein. The defendants were served but failed to attend court or file any response. The Application is based on the grounds that the plaintiff/applicant is the registered owner of a parcel of land a parcel of land known as Kilifi/Mtwapa/2147. That the 1st defendant did encroach into the suit parcel of land and fenced off a considerable chunk; approximately 2 acres, on allegations that the same forms part of his land Kilifi/Mtwapa/3391. The application remains unopposed. I therefore grant prayer two of the application dated 27th October 2021. Costs to be in the cause.
It is so ordered.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 20TH JANUARY 2022.
N.A. MATHEKA
JUDGE