[2017] KEELC 3500 (KLR)
The court found that the dispute between the parties centers on the true boundary between parcel Nzaui/Mumbuni/210 and Nzaui/Kilili/610, with both sides claiming occupation of different parcels. In accordance with Section 18 of the Land Registration Act, the court determined that such boundary disputes fall within...
Source-derived case information.
- Citation
- [2017] KEELC 3500 (KLR)
- Parties
- Plaintiff: John Maswili Mulwa; Defendant: Munywoki Kisese; Defendant: Nzomo Munywoki; Defendant: Masila Munywoki; Defendant: Vavu Munywoki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 58 of 2016
- Procedural Posture
- Miscellaneous Application / Interlocutory Application for Injunction and Boundary Determination
- Outcome
- Interlocutory orders granted in part; matter referred to District Land Registrar and Surveyor for boundary determination; status quo to be maintained.
- Judges
- OA Angote
- Legal Topics
- Boundary Disputes, Land Registration, Trespass, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Maswili Mulwa
Plaintiff
Munywoki Kisese
Defendant
Nzomo Munywoki
Defendant
Masila Munywoki
Defendant
Vavu Munywoki
Defendant
Procedural Posture
Miscellaneous Application / Interlocutory Application for Injunction and Boundary Determination
Legal Issues
- 1 Whether the Defendants have trespassed onto parcel Nzaui/Mumbuni/210 as alleged by the Plaintiff.
- 2 Whether an injunction should issue restraining the Defendants from interfering with parcel Nzaui/Mumbuni/210 pending determination of the suit.
- 3 Whether the boundary between Nzaui/Mumbuni/210 and Nzaui/Kilili/610 should be determined by the County Surveyor and District Land Registrar.
Ratio Decidendi
The court found that the dispute between the parties centers on the true boundary between parcel Nzaui/Mumbuni/210 and Nzaui/Kilili/610, with both sides claiming occupation of different parcels. In accordance with Section 18 of the Land Registration Act, the court determined that such boundary disputes fall within the jurisdiction of the District Land Registrar, who is mandated to ascertain and fix boundaries. The court therefore ordered the District Land Registrar and Surveyor to visit the parcels in question, determine their respective positions, and file a report. The court declined to grant the injunctive relief sought by the Plaintiff, instead ordering that the status quo be...
Court Disposition
Interlocutory orders granted in part; matter referred to District Land Registrar and Surveyor for boundary determination; status quo to be maintained.
Orders
- The Makueni District Land Registrar and the Surveyor to visit parcels of land numbers Nzaui/Mumbuni/210 and Nzaui/Kilili/610 and locate the position of each land viz-a-viz each other.
- The Makueni District Land Registrar and the Surveyor to file their report in this court within sixty (60) days from the date of this Ruling.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC CASE NO. 58 OF 2016
JOHN MASWILI MULWA.......................................PLAINTIFF
VERSUS
MUNYWOKI KISESE....................................1ST DEFENDANT
NZOMO MUNYWOKI...................................2ND DEFENDANT
MASILA MUNYWOKI..................................3RD DEFENDANT
VAVU MUNYWOKI.......................................4TH DEFENDANT
RULING
1. This Ruling is in respect to the Plaintiff’s Application dated 27th July, 2016. In the Application, the Plaintiff is seeking for the following orders:
a.That the Respondents by themselves or their agents be restrained from constructing new structures, cultivating or using in a destructive manner parcel No. Nzaui/Mumbuni/210 pending the hearing and determination of the main suit.
b.That this Honourable Court do issue an order directing County Surveyor Makueni County to determine the boundary between parcel No. Nzaui/ Mumbuni/210 and parcel No. Nzaui/Kilili/610 and file a report thereto pending the hearing and determination of the main suit.
2. The Application is supported by the Affidavit of the Plaintiff who has deponed that he is the legal representative of the Estate of Mbili Mulwa; that Mbili Mulwa is the registered proprietor of parcel of land number Nzaui/Mumbuni/210 and that the Defendants have trespassed on the suit land and are carrying out acts of waste and destruction.
3. According to the Plaintiff, the Defendants have insisted that they are occupying their land which is parcel of land number Nzaui/Kilili/610 and not plot number 210.
4. The Plaintiff’s prayer is that it is only fair that a Surveyor be sent to determine the boundaries.
5. In response, the 1st Defendant deponed that the Application is bad in law and should be struck out in limine; that the Respondents have always been in possession of parcel of land known as Nzaui/Kilili/610 and that they have not encroached in the land as claimed by the Plaintiff.
6. The Plaintiff’s and the Defendants’ advocates filed brief submissions which I have considered.
7. The Plaintiff has annexed on his Affidavit the Grant of Letters of Administration Intestate. The said Grant shows that the Plaintiff is the legal representative of the Estate of Mbili Mulwa. Mbili Mulwa is the registered proprietor of parcel of land known as Nzaui/Mumbuni/210.
8. The Defendants’ claim is that they are occupying plot number 610 and not 210. It would appear that what is before the court is a boundary dispute, or a case in which one party is not aware where his land is, which, according to the provisions of Section 18 of the Land Registration Act should be resolved by the District Land Registrar.
9. In the circumstances, this court makes the following orders:
a.The Makueni District Land Registrar and the Surveyor to visit parcels of land numbers Nzaui/Mumbuni/210 and Nzaui/Kilili/610 and locate the position of each land viz-a-viz each other.
b.The Makueni District Land Registrar and the Surveyor to file their report in this court within sixty (60) days from the date of this Ruling.
c.The status quo prevailing now to be maintained pending the hearing of the suit or further orders of this court.
DATEDAND DELIVERED AT MACHAKOS THIS 3RDDAY OF MARCH, 2017.
OSCAR A. ANGOTE
JUDGE