[2020] KEELC 403 (KLR)
The court found that the sub-division of Land Parcel No. South Wanga/Lureko/2680 was not conducted in accordance with its prior judgment, which required that the boundaries be determined by the County Land Surveyor based on the portion occupied by the plaintiff by virtue of adverse possession. The evidence showed...
Source-derived case information.
- Citation
- [2020] KEELC 403 (KLR)
- Parties
- Plaintiff: Juma Wangwero Otembo; Defendant: Calistus Musiko; Respondent: County Land Surveyor- Kakamega County
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 253 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay and Enforcement of Judgment
- Outcome
- application allowed in part
- Judges
- NA Matheka
- Legal Topics
- Adverse Possession, Land Subdivision, Execution of Judgment, Demarcation of Boundaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Juma Wangwero Otembo
Plaintiff
Calistus Musiko
Defendant
County Land Surveyor- Kakamega County
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay and Enforcement of Judgment
Legal Issues
- 1 Whether the sub-division of Land Parcel No. South Wanga/Lureko/2680 was carried out in accordance with the court's judgment.
- 2 Whether the County Land Surveyor should be restrained from sub-dividing the land contrary to the court's orders.
- 3 Whether any sub-division done contrary to the court's orders should be nullified and a fresh one done.
Ratio Decidendi
The court found that the sub-division of Land Parcel No. South Wanga/Lureko/2680 was not conducted in accordance with its prior judgment, which required that the boundaries be determined by the County Land Surveyor based on the portion occupied by the plaintiff by virtue of adverse possession. The evidence showed that the plaintiff and his family occupied part of the land, but the precise acreage could not be established from the evidence. The court's earlier judgment did not specify acreage but directed that the boundaries be determined according to occupation and existing demarcations. The applicant demonstrated that the sub-division was instead based on a claimed acreage rather than...
Court Disposition
application allowed in part
Orders
- The County Land Surveyor is restrained from sub-dividing Land Parcel No. South Wanga/Lureko/2680 other than in the manner ordered by the court.
- Any resultant sub-division done in any other manner other than as ordered by the court is nullified and a fresh one to be done.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KAKAMEGA
ELC CASE NO. 253 OF 2017
JUMA WANGWERO OTEMBO .................................... PLAINTIFF/RESPONDENT
VERSUS
CALISTUS MUSIKO...........................................................DEFENDANT/APPLICANT
AND
COUNTY LAND SURVEYOR- KAKAMEGA COUNTY....... INTERESTED PARTY
RULING
The application is dated 2nd November 2020 and is brought under Order 22, Rule 22 of the Civil Procedure Rules and Section 1A, 1B, 3A and 34 of the Civil Procedure Act 2010 seeking the following orders:-
1. That service of this application be dispensed with, the same be certified urgent and heard ex-parte in the 1st instance.
2. That pending the hearing of this application interparties there be an order of stay of execution of the decree herein.
3. That there be an order of stay of the execution of the decree herein.
4. That the County Land Surveyor be restrained from sub-diving Land Parcel No. South Wanga/Lureko/2680 other than in the manner ordered by this court.
5. That any resultant sub-division done in any other manner other than as ordered by this court be nullified and a fresh one done.
6. That the sub-division of Land Parcel No. South Wanga/Lureko/2680 be carried out in accordance with the existing demarcations.
7. That the plaintiff be restrained from uprooting the existing demarcation features.
8. That costs of this application be provided for.
It is supported by the affidavit of Kalisto Misiko Lutome and grounds that the sub-division of Land Parcel No. South Wanga/Lureko/2680 was carried out based on the two acres claimed by the plaintiff and not as per the existing demarcations as ordered by the court. That the plaintiff has commenced and is in the process of uprooting the existing demarcations. That the sub-division of Land Parcel No. South Wanga/Lureko/2680 was not done in accordance with the judgment of this court. That failure to sub-divide Land Parcel No. South Wanga/Lureko/2680 in accordance with the judgment of this court has altered the said judgment and led to a miscarriage of justice. That it will be in the interest of justice if this application is allowed.
This court has considered the application and the submissions therein. The application was served and was not opposed. I have peruse the judgement delivered in this court on the 26th June 2019 and where the court found that it cannot ascertain what size of land was purchased. Indeed the plaintiff’s witnesses said they used their feet to determine the boundary and the land was never surveyed. It has not been disputed that the plaintiff and his family has occupied part of land parcel No. S. Wanga/Lureko/2680 which was created from L.R. No. S. Wanga/Lureko/390 the acreage cannot be established from the evidence adduced before it. Hence the court declared the plaintiff the owner of a portion out of land parcel No. S. Wanga/Lureko/2680 whose boundaries are to be determined by the County Land Surveyor and which he occupies and to which he is entitled to by virtue of adverse possession. I find this application is merited and I grant prayer 4, 5 and 6 with no orders as to costs.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA THIS 9TH DECEMBER 2020.
N.A. MATHEKA
JUDGE