[2017] KEELC 3462 (KLR)
The court found that the dispute essentially concerns the boundary between two parcels of land, with each party claiming occupation of different parcels. In accordance with Section 18 of the Land Registration Act, such disputes fall within the purview of the District Land Registrar, who is mandated to determine and...
Source-derived case information.
- Citation
- [2017] KEELC 3462 (KLR)
- Parties
- Plaintiff: Josphat Muema Muia; Defendant: Nzinga Kisese; Defendant: Mueni Musembi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 57 of 2016
- Procedural Posture
- Miscellaneous Application / Interlocutory Application Ruling
- Outcome
- Application partially allowed; matter referred to District Land Registrar and Surveyor for boundary determination.
- Judges
- OA Angote
- Legal Topics
- Boundary Dispute, Land Registration, Trespass, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josphat Muema Muia
Plaintiff
Nzinga Kisese
Defendant
Mueni Musembi
Defendant
Procedural Posture
Miscellaneous Application / Interlocutory Application Ruling
Legal Issues
- 1 Whether the defendants have trespassed onto parcel Nzaui/Mumbuni/214 as alleged by the plaintiff.
- 2 Whether an order should issue restraining the defendants from interfering with parcel Nzaui/Mumbuni/214 pending determination of the suit.
- 3 Whether the court should direct the County Surveyor and District Land Registrar to determine the boundary between the disputed parcels.
Ratio Decidendi
The court found that the dispute essentially concerns the boundary between two parcels of land, with each party claiming occupation of different parcels. In accordance with Section 18 of the Land Registration Act, such disputes fall within the purview of the District Land Registrar, who is mandated to determine and fix boundaries. The court therefore directed the District Land Registrar and Surveyor to visit the parcels in question, ascertain their respective positions, and file a report. Pending this determination, the court ordered that the prevailing status quo be maintained to prevent further conflict or alteration of the land's condition.
Court Disposition
Application partially allowed; matter referred to District Land Registrar and Surveyor for boundary determination.
Orders
- The Makueni District Land Registrar and the Surveyor to visit parcels Nzaui/Mumbuni/214 and Nzaui/Kilili/610 and locate the position of each land relative to the other.
- The Makueni District Land Registrar and the Surveyor to file their report in court within sixty (60) days from the date of the ruling.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 57 OF 2016
JOSPHAT MUEMA MUIA................................PLAINTIFF
VERSUS
NZINGA KISESE....................................1ST DEFENDANT
MUENI MUSEMBI.................................2ND DEFENDANT
RULING
1. The Application before me is the one dated 27th July, 2016. In the Application, the Applicant is seeking for the following reliefs:
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/214 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/ 214 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 MuiaNgenyeke; that Muia Ngenyeke is the registered proprietor of parcel of land number Nzaui/Mumbuni/214 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 214.
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 on 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 Muia Ngenyeke. Muia (Muya) Ngenyeke is the registered proprietor of parcel of land known as Nzaui/Mumbuni/214.
8. The Defendants’ claim is that they are occupying plot number 610 and not 214. 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/214 and Nzaui/Kilili/610 and locate the position of each land viz-a-viz each
b)other.
c) 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.
d) 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