[2012] KEHC 1469 (KLR)
The court found that the trial magistrate's adoption of the survey plan at page 29 of the Record of Appeal was sound, as it avoided unnecessary loss of land to access roads and protected the interests of a third party (owner of parcel No. 193) who was not involved in the proceedings. The court emphasized that the...
Source-derived case information.
- Citation
- [2012] KEHC 1469 (KLR)
- Parties
- Appellant: Joseph Mwangi Mwaura; Respondent: David Mburu Mwaura
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 154 of 2011
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- DA Onyancha
- Legal Topics
- Land Subdivision, Survey Plans, Access Roads, Third Party Land Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mwangi Mwaura
Appellant
David Mburu Mwaura
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in adopting the subdivision plan for L.R. NO. Githunguri/Gathangari/2365.
- 2 Whether the inclusion of access roads unnecessarily deprived the parties of land.
- 3 Whether the rights of a third party (owner of parcel No. 193) would be affected by the proposed subdivision.
Ratio Decidendi
The court found that the trial magistrate's adoption of the survey plan at page 29 of the Record of Appeal was sound, as it avoided unnecessary loss of land to access roads and protected the interests of a third party (owner of parcel No. 193) who was not involved in the proceedings. The court emphasized that the plan supported by the District Land Surveyor and the respondent was preferable because it eliminated the road that would have cut across parcel 'A' and potentially encroached on parcel No. 193. The court further ordered that the remaining road be widened from 6 metres to 9 metres, and that the plan be implemented immediately by the District Land Surveyor. The appeal was dismissed...
Court Disposition
appeal dismissed
Orders
- The survey plan found on page 29 of the Record of Appeal shall be adopted.
- The remaining road shall be widened from 6 metres to 9 metres.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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JOSEPH MWANGI MWAURA. ............................. APPELLANT
VERSUS
DAVID MBURU MWAURA. ................................. RESPONDENT
(From the ruling of C Oluoch, SRM in Kiambu CMCC Number 269 of 2008)
J U D G M E N T
This appeal arises from the ruling of the Senior Resident Magistrate, Kiambu. As this court understands it, the court accepted and endorsed the subdivision of the land in dispute being L.R. NO. Githunguri/Gathangari/2365, into two equal divisions.
The trial court based its ruling on the evidence of either party as well as that of the District Land Surveyor. I have carefully perused the evidence of either party and that of the District Land Surveyor.
The Appellant argued that those two roads, one below and one above the lands, are unnecessary as they occupy unnecessary land space. He prefers that I adopt the land division plan found on page 22 of the Record of Appeal. What is surprising however, is that the method of division on page 22 of the record is one that adopts two roads and with a possibility that one of the roads which also crosses parcel “A” at one end, will force the road to cross parcel No. 193 which belongs to a third party who is not a party. This is also so despite the fact that at the opposite end of the two divisions of land “A” and “B” the two parties have a common road.
The Respondent on the other hand, urged the court to adopt the division plan found on page 29. This one gets rid of the road which would cut parcel “A” across and also require to cut parcel No. 193 as well. As mentioned earlier, Parcel No. 193 belongs to a third party who is not a party.
I have carefully considered the evidence supporting the decision of the trial court. The District Land Surveyor recommended the same suggestion. The same was also backed by the Respondent herein. It is more appealing to this court because it removes the road which cut parcel “A” and threaten to cross parcel No. 193 that belongs to a third party. It also spares some land (0. 11 ha) which would otherwise go to the road roads at the end of the land are allowed to stay.
In the circumstances, I find the trial magistrate’s ruling to be sound and preferable. The survey plan found on page 29 of the Record of Appeal shall be adopted. Subject to the widening of the remaining road from 6 metres to 9 metres, I order that the said survey plan on page 29 of the Appeal record be immediately adopted and carried out by the District Land Surveyor. This appeal has, therefore, no merit. It is hereby dismissed with half costs. Orders accordingly.
Dated and delivered at Nairobi this 23rd day of October, 2012.
............................................
D A ONYANCHA
JUDGE