[2021] KEELC 397 (KLR)
The court found that the application was unopposed and that the interests of justice required the identification of the land boundaries to facilitate execution of the judgment. The court further held that the Plaintiff/Respondent, though incarcerated, should be present during the survey to ensure transparency and...
Source-derived case information.
- Citation
- [2021] KEELC 397 (KLR)
- Parties
- Plaintiff: Luka Kirimi William; Defendant: Robert Miriti Murianki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 7 of 2019
- Procedural Posture
- Notice of Motion / Ruling on Post Judgment Application for Survey and Related Orders
- Outcome
- Application allowed as unopposed; orders granted as prayed with modifications.
- Legal Topics
- Execution of Judgment, Land Adjudication, Survey Orders, Identification of Boundaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Luka Kirimi William
Plaintiff
Robert Miriti Murianki
Defendant
Procedural Posture
Notice of Motion / Ruling on Post Judgment Application for Survey and Related Orders
Legal Issues
- 1 Whether a survey should be ordered to identify beacons on the disputed land parcel to facilitate execution of judgment.
- 2 Whether the Plaintiff/Respondent should be present during the survey exercise despite being incarcerated.
- 3 Whether security should be provided during the survey to prevent hostility or obstruction.
Ratio Decidendi
The court found that the application was unopposed and that the interests of justice required the identification of the land boundaries to facilitate execution of the judgment. The court further held that the Plaintiff/Respondent, though incarcerated, should be present during the survey to ensure transparency and fairness. Security was ordered to be provided during the survey to prevent any hostility or obstruction. The Defendant/Applicant was directed to meet the costs of the survey and related charges. The orders sought were therefore granted as prayed, with directions for service on relevant authorities and a mention date fixed for further directions.
Court Disposition
Application allowed as unopposed; orders granted as prayed with modifications.
Orders
- A survey to be conducted by the District Surveyor on Land Parcel LOWER EAST MAGUTUNI ADJUDICATION SECTION 656 to identify beacons.
- The Plaintiff/Respondent to be escorted from prison and present during the survey exercise.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC CASE NO. 07 OF 2019 (OS)
LUKA KIRIMI WILLIAM....................................................................................PLAINTIFF
VERSUS
ROBERT MIRITI MURIANKI.........................................................................DEFENDANT
RULING
1. This Ruling is in respect of the Notice of Motion application dated 14th September, 2021 brought under Section 1A, 1B & 3A of the Civil Procedure Act, Section 16 of the Land Registration Act and all other enabling provisions of law. The Defendant/Applicant seeks the following orders:
(1) That this Honourable court be pleased to order that a survey be conducted on Land Parcel LOWER EAST MAGUTUNI ADJUDICATION SECTION 656 for the purpose of identifying beacons on the parcel of land.
(2) That this Honourable court be pleased to order the OCS Chogoria Police Station to avail security during the conduct of the survey.
(3) That the costs of this application be provided for.
2. The application is supported by the affidavit of Robert Miriti Murianki, the Applicant and is based on the following grounds:
a) That the execution of the judgment issued by Judge P. M. Njoroge has been delayed due to the fact that the parcel of land lacks beacons.
b) That the judgment debtor has vehemently opposed any survey of the land and they are hostile.
c) That the decree holder is prejudiced as he is unable to occupy his parcel of land, LOWER EAST MAGUTUNI ADJUDICATION SECTION 656.
d) That it is in the interest of justice that the survey is conducted to execute judgment and identify the beacons of the said parcel of land.
3. The applicant has exhibited a copy of the Ruling delivered by Honourable P. M. Njoroge, J, on 17th June, 2019 dismissing the suit in its entirety with no orders as to costs.
4. The Plaintiff/Respondent who said that he is serving sentence at Chuka G. K. Prison was escorted to court on 15. 12. 2021. He informed the court that he was not opposed to the application herein. However, he wanted the survey exercise to be carried out in his presence.
5. Accordingly, since the application is not opposed, I allow the same in the following terms:
a) An order is hereby made that a survey be conducted by the District Surveyor on Land Parcel LOWER EAST MAGUTUNI ADJUDICATION SECTION 656 for the purpose of identifying beacons on the said parcel of land.
b) An order is hereby made that the Plaintiff/Respondent who is serving sentence at Chuka G. K. Prison be escorted to the suit land and to be present during the survey exercise.
c) The Officer Commanding Chogoria Police Station (OCS) to avail security during the conduct of the survey.
d) The Defendant/Applicant to meet the costs of the surveyor and any other relevant charges.
e) Costs of the application shall be in the cause.
f)This matter is fixed for mention on 1. 2.2022.
g) This Ruling to be served on the District Surveyor, Chuka, the OCS Chogoria Police Station and the Officer-in-Charge Chuka G. K. Prison.
6. It is so ordered.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT CHUKA THIS 15TH DAY OF DECEMBER, 2021 in the presence of:
C/A: Ndegwa
Ms. Kijaru for the Defendant/Applicant
Luka Kirimi William the Plaintiff/Respondent in person
C. K. YANO,
JUDGE.