[2018] KEELC 2560 (KLR)
The court found that the parties had, by consent, agreed to the registrar and surveyor's visit to the suit land for boundary demarcation, and the applicant had every opportunity to challenge the report both on site and in court but failed to do so. The application for review or setting aside the judgment was...
Source-derived case information.
- Citation
- [2018] KEELC 2560 (KLR)
- Parties
- Plaintiff: James Oloolkeyai Ole Seriani; Defendant: Ole Nkoliai; Defendant: Stephen Nkoliai; Defendant: David Nkoliai; Defendant: Ndege Kipos; Defendant: David Mpilel
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 497 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review And/or Setting Aside Judgment
- Outcome
- Application partially allowed due to higher court order; judgment and consequential orders set aside; trial stayed.
- Judges
- MN Kullow
- Legal Topics
- Boundary Disputes, Review of Judgment, Survey Reports, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Oloolkeyai Ole Seriani
Plaintiff
Ole Nkoliai
Defendant
Stephen Nkoliai
Defendant
David Nkoliai
Defendant
Ndege Kipos
Defendant
David Mpilel
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Review And/or Setting Aside Judgment
Legal Issues
- 1 Whether the judgment dated 26th July, 2017 should be reviewed or set aside due to alleged reliance on a disputed survey report.
- 2 Whether the court was misled by the applicant regarding the survey map and lack of consensus on the report.
- 3 Whether the judgment contravened a Court of Appeal order maintaining status quo over the suit property.
Ratio Decidendi
The court found that the parties had, by consent, agreed to the registrar and surveyor's visit to the suit land for boundary demarcation, and the applicant had every opportunity to challenge the report both on site and in court but failed to do so. The application for review or setting aside the judgment was therefore unmerited. However, due to the existence of a Court of Appeal order staying proceedings and maintaining the status quo in respect of the suit property and resultant titles, the court was bound to abide by the higher court's directive. Consequently, the judgment of 26th July, 2017 and all consequential orders were set aside, and the trial was ordered to await the outcome of...
Court Disposition
Application partially allowed due to higher court order; judgment and consequential orders set aside; trial stayed.
Orders
- The judgment of the court made on 26th July, 2017 and all consequential orders are set aside.
- The trial of this suit shall await the hearing and determination of Kisii ELC 249 of 2013.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAROK
ELC CAUSE NO. 497 OF 2017
FORMERLY KISII ELC NO. 190 OF 2016
JAMES OLOOLKEYAI OLE SERIANI...........PLAINTIFF
-VERSUS-
OLE NKOLIAI...........................................1ST DEFENDANT
STEPHEN NKOLIAI................................2ND DEFENDANT
DAVID NKOLIAI......................................3RD DEFENDANT
NDEGE KIPOS..........................................4TH DEFENDANT
DAVID MPILEL........................................5TH DEFENDANT
RULING
The Application before me is the Plaintiffs Notice of Motion dated 16th October, 2017 wherein the Applicant sought for a substantive order that the Judgment of this court dated 26th July, 2017 be reviewed and /or cancelled in the Applicants own words rather than setting aside, the application was based on the grounds that the court entered Judgement upon adopting the Plaintiff surveyors report which in the opinion of the applicant contradicts the other report filed by the Applicants surveyors. That the Applicant misled the court into relying on the wrong survey map knowing that there was no consensus which was agreed issues on the report by the parties and lastly that the judgment entered was contrary to a Court of Appeal order that is CA No. 29 of 2014 and Kisii Elc No. 249 f 2013 which affects all Land Reference. TRANS MARA/OLOMISMIS/1 as Land reference No. 972 fall within the same.
The application was supported by the affidavit of Stephen Nkoliai who averred that the court on 8th December, 2016 issued an order directing the Land Registrar Trans Mara to establish and fix the boundaries in respect of land reference No. Trans Mara/Olomismis/966,970 and 971 which report was not to be released without consulting the parties. He further alleged that the sub-county commander influenced the said report in reducing the acreage of land parcel No. Trans Mara/Olomismis/969 as being 91 acres and not 51 acres.
The Applicant on his affidavit contended that the registrar and the surveyor used GPS instead of chain link survey which led to the discrepancy in acreage in parcel No. 970 and 969 which the Applicant disagree with.
He further contended that the judgement of the court will confirm tittle allotment and the boundaries which will be contrary to an order of the court of appeal in civil appeal no. 29 of 2014 that maintained the status quo in respect of parcel No. Trans Mara/Olomismis/1 and resultant title.
The Application was opposed by the Respondent who filed a replying affidavit. The Respondent reiterated that the registrar and the surveyor visited the land upon the consent of the parties. He averred that the Registrar and surveyor visited the 2nd land and fixed the boundaries and carried out the exercise in the presence of the parties and the area chief and the parties accorded an opportunity to address the registrar and all the parties left having been satisfied with the exercise.
I have looked at the Application and the supporting affidavit thereto plus the responding grounds of opposition and the replying affidavit in opposition to the application and I find that the parties herein had by consent agreed to the registrar and surveyor Trans Mara visit to the suit land and establish the boundaries and demarcate the same. The applicant had every opportunity to challenge the said report both on the site and in court but did not do so and that was inordinate delay in buying the current application.
I find the application unmerited, however, since there exists a court of appeal ruling staying proceedings in respect of Trans Mara/Olomismis/1 and such other resultant title I have no option but to abide by the ruling of the court of appeal. On this ground I do vary and set aside the judgment of the court made on 26th July, 2017 and other consequential orders made therefrom and I order that the trial of this suit awaits the hearing and determination of Kisii Elc 249 of 2013.
DATED, SIGNED and DELIVERED in open court atNAROKon this16th day ofMarch, 2018
Mohammed Noor Kullow
Judge
16/3/18
In the presence of:-
Mr Kamwaro holding brief for Oguttu for the plaintiff/respondent
Ms Cheptoo holding brief for Mukoya for the defendant
CA:Chuma
Mohammed Noor Kullow
Judge
16/3/18