[2018] KEHC 4699 (KLR)
The court found that the disappearance of the blue gum trees, which were to serve as boundary markers as per the original order, rendered compliance with that order impossible. This constituted a sufficient reason to review the order. The court accepted the applicant's request to have the boundary rectification...
Source-derived case information.
- Citation
- [2018] KEHC 4699 (KLR)
- Parties
- Appellant: Leonard Gichuru; Respondent: Fredrick Waweru Kinyanjui
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 293 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Application for Review of Court Orders
- Outcome
- Application for review allowed. Orders of 8th February, 2012 reviewed as recommended by the Land Registrar and Surveyor. Each party to bear its own costs.
- Judges
- JK Sergon
- Legal Topics
- Review of Court Orders, Boundary Disputes, Rectification of Land Register
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leonard Gichuru
Appellant
Fredrick Waweru Kinyanjui
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review of Court Orders
Legal Issues
- 1 Whether the court should review its orders dated 8th February, 2012 regarding rectification of the land boundary.
- 2 Whether the disappearance of the blue gum trees, which were to be used as boundary markers, constitutes sufficient reason for review.
Ratio Decidendi
The court found that the disappearance of the blue gum trees, which were to serve as boundary markers as per the original order, rendered compliance with that order impossible. This constituted a sufficient reason to review the order. The court accepted the applicant's request to have the boundary rectification refer to the Land Registrar's measurement of 5th February, 2003, which established a twelve-yard encroachment. The court therefore allowed the application for review, holding that the circumstances justified the modification of its previous orders to ensure the boundary could be properly rectified.
Court Disposition
Application for review allowed. Orders of 8th February, 2012 reviewed as recommended by the Land Registrar and Surveyor. Each party to bear its own costs.
Orders
- The orders given by the court on 8th February, 2012 are reviewed in terms recommended by the Land Registrar and Surveyor at Kiambu as per their letter dated 7th February, 2018.
- Each party shall bear its own costs of the application.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NUMBER 293 OF 2009
LEONARD GICHURU.......................................APPELLANT
VERSUS
FREDRICK WAWERU KINYANJUI...........RESPONDENT
R U L I N G
The subject matter of this ruling is the motion dated 14th February, 2018 taken out by the Appellant/Applicant in which he sought for the following orders: -
1. The orders given by this Honourable Court (Hon. Lady Justice Ang’awa) on 8th February, 2012 be reviewed in terms recommended by the Land Registrar and Surveyor at Kiambu in their letter dated 7th February, 2018 addressed to the Deputy Registrar of this Honourable Court.
2. Costs of this application be provided.
The motion is supported by the affidavit of Peter Muiruri Mugu. It would appear from the record that despite the motion having been served, there is no response filed.
I have considered the grounds stated on the face of the motion plus the facts deponed in the supporting affidavit. The Appellant/Applicant is basically seeking for an order for the review of the orders issued by this court on 8th February, 2012. The Applicant pointed out that pursuant to the aforesaid orders the Land Registrar and the Land Surveyor, Kiambu, were directed to rectify the boundary of the parcel of land, formerly known as Karai/Karai/2852 using blue gum trees which existed at the time of issuing the order. The Applicant averred that, when the Land Registrar and Surveyor visited the aforesaid land on 1st February, 2018, they discovered that the blue gum trees referred to by the court no longer existed hence it became impossible to comply with the court order. It is for this reason that the Applicant took out the current motion.
It is the submission of the Applicant that it is necessary to review the aforesaid order so that it refers to the measurement of the Land Registrar as indicated on 5th February, 2003, that the encroachment into the land was twelve (12) yards.
Having considered the materials placed before this court, I am convinced that the motion has merit. The same is allowed as prayed save that each party shall meet its own costs.
Dated, signed and delivered at Nairobi this 13th day of July, 2018.
........................
J K SERGON
JUDGE
In the presence of
............................. for the Appellant
.............................. for the Respondent