[2018] KEELC 3164 (KLR)
The court found that there was no clear demarcation of the boundary between the plaintiff's and defendant's parcels of land, S/Wanga/Buchifi/2566 and S/Wanga/Buchifi/2565, respectively. Both parties expressed willingness for the Land Registrar and Surveyor to establish the boundary. The court determined that the...
Source-derived case information.
- Citation
- [2018] KEELC 3164 (KLR)
- Parties
- Plaintiff: Kalasina W. Omanyo; Defendant: Lucas Omondi Omanyo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 206 of 2016
- Procedural Posture
- Land Dispute / Judgment
- Outcome
- orders granted as prayed in part; boundary to be confirmed by Land Registrar and Surveyor; each party to bear own costs
- Judges
- NA Matheka
- Legal Topics
- Boundary Disputes, Land Registration, Parcel Demarcation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kalasina W. Omanyo
Plaintiff
Lucas Omondi Omanyo
Defendant
Procedural Posture
Land Dispute / Judgment
Legal Issues
- 1 Whether the defendant has encroached onto the plaintiff's parcel of land No. S/Wanga/Buchifi/2566.
- 2 Whether the common boundary between parcels S/Wanga/Buchifi/2565 and S/Wanga/Buchifi/2566 should be rectified and confirmed by the Land Registrar and Surveyor.
Ratio Decidendi
The court found that there was no clear demarcation of the boundary between the plaintiff's and defendant's parcels of land, S/Wanga/Buchifi/2566 and S/Wanga/Buchifi/2565, respectively. Both parties expressed willingness for the Land Registrar and Surveyor to establish the boundary. The court determined that the appropriate remedy was to order the Land Registrar and Surveyor to visit the parcels and confirm the common boundary, with the costs of the exercise to be shared equally. The court declined to award costs of the suit to either party, given the mutual willingness to resolve the dispute and the absence of clear evidence of encroachment or malice.
Court Disposition
orders granted as prayed in part; boundary to be confirmed by Land Registrar and Surveyor; each party to bear own costs
Orders
- The Land Registrar and Land Surveyor to visit the plaintiff and defendant's parcels of land No. S/Wanga/Buchifi/2566 and S/Wanga/Buchifi/2565 and confirm the common boundaries and the parties to share the costs.
- Each party to bear their own costs of this suit.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC CASE NO. 206 OF 2016
KALASINA W. OMANYO....................................................PLAINTIFF
VERSUS
LUCAS OMONDI OMONYO..........................................DEFENDANT
JUDGEMENT
The plaintiff case is that, she is the owner of parcel of land No. S/Wanga.Buchifi/2566 whereas the defendant is the owner of parcel of land No. S/Wanga/Buchifi/2565 and they share a common boundary.The plaintiff avers that the defendant has encumbered into her parcel of land No. S/Wanga/Buchifi/2566 extending his land No. S/Wanga/Buchifi/2565 into the plaintiff’s land.The plaintiff therefore prays for an order that their common boundary separating their parcels of land be rectified by the land registrar and government surveyor to avoid further dispute over the same.The plaintiff further avers that instead of following the due process of land the defendant has resorted to use his position as a senior in the family and a man to intimidate and harass the plaintiff over the subject matter above. The plaintiff prayer against the defendant is for; an order directing the Land Registrar and Government surveyor to visit the plaintiff and defendants parcels of land No. S/Wanga/Buchifi/2566 and S/Wanga/Buchifi/2565 and rectify and confirm the common boundaries and costs of this suit.
The defendant denies in totally that he has ever encumbering the plaintiff’s parcel of land better known as L.R. No. S/Wanga/Buchifi/2566. In the alternative and without prejudice the defendant is ready and willing to have the boundaries separating parcels of land No. S/Wanga/Buchifi/2565 and 2566. The defendant prays that the plaintiff’s suit be dismissed.
This court has carefully considered both the plaintiff’s and the defendant’s cases. PW1 testified that she was allocated land about 9 acres from her late father’s land via succession from L.P No. S/Wanga/Buchifi/475. That the same land is subdivided and now I own parcel No. S/Wanga/Buchifi/2566. That after subdivision of the said land it gave rise to new nos’ 2565 belonging to Lucas Omondi Omanyo and 2566 to her.That there are no clear boundaries over the two parcels and as such the defendant is using that advantage to dig a bigger piece. She prays to this court to direct the Land Registrar and District surveyor to establish the boundaries.The defendant is ready and willing to have the boundaries separating parcels of land No. S/Wanga/Buchifi/2565 and 2566. I therefore grant the following orders;
1. The Land Registrar and Land Surveyor to visit the plaintiff and defendants parcels of land No. S/Wanga/Buchifi/2566 and S/Wanga/Buchifi/2565 and confirm the common boundaries and the parties to share the costs.
2. Each party to bear their own costs of this suit.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 16TH DAY OF MAY 2018.
N.A. MATHEKA
JUDGE