[2014] KEHC 7661 (KLR)
The court found that the core dispute was the physical identification of the two land parcels, with the Plaintiff claiming the Defendant had encroached on her property and the Defendant maintaining he occupied a different parcel. Given the conflicting claims and the Plaintiff's supporting evidence, and in the...
Source-derived case information.
- Citation
- [2014] KEHC 7661 (KLR)
- Parties
- Plaintiff: Margaret Wanjiru Karanja; Defendant: Antony Motari
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 636 of 2013
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application
- Outcome
- application allowed
- Judges
- MM Gitumbi
- Legal Topics
- Land Boundary Dispute, Ownership Determination, Land Survey, Encroachment, Title Verification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Wanjiru Karanja
Plaintiff
Antony Motari
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application
Legal Issues
- 1 Whether a government survey should be ordered to determine the physical location and boundaries of Ruiru/Kiu Block 6/139 and Ruiru/Kiu Block 6/680.
- 2 Whether the surveyor should ascertain the rightful owner of Ruiru/Kiu Block 6/139.
Ratio Decidendi
The court found that the core dispute was the physical identification of the two land parcels, with the Plaintiff claiming the Defendant had encroached on her property and the Defendant maintaining he occupied a different parcel. Given the conflicting claims and the Plaintiff's supporting evidence, and in the absence of any opposition from the Defendant, the court determined that the most effective and just resolution was to order a government survey. This would conclusively establish the boundaries and rightful ownership, thereby resolving the dispute. The application was therefore allowed as merited.
Court Disposition
application allowed
Orders
- The Government District Surveyor for Thika District shall visit Land Title Number Ruiru/Kiu Block 6/139 and Land Title Number Ruiru/Kiu Block 6/680 to identify their geographical locations.
- The surveyor shall ascertain the rightful owner of Ruiru/Kiu Block 6/139 and file a report within thirty (30) days of the visit.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
ENVIRONMENT AND LAND DIVISION
ELC. NO. 636 OF 2013
MARGARET WANJIRU KARANJA……………………....PLAINTIFF
VERSUS
ANTONY MOTARI……………………………………….... DEFENDANT
RULING
Coming up before me for determination is the Notice of Motion dated 16th July 2013 in which the Plaintiff/Applicant is seeking for the following orders:
That the Government District Surveyor for Thika District do visit Land Title Number Ruiru/Kiu Block 6/139 and Land Title Number Ruiru/Kiu Block 6/680 for purposes of identifying the geographical location of the two parcels.
That the surveyor do ascertain the rightful owner of Ruiru/Kiu Block 6/139 and file a report within Thirty (30) days of the visit
That the cost of the survey be borne by both parties in equal portions
That cost of this application be in the suit.
This application is based on the grounds appearing on the face of it together with the Supporting Affidavit of the Plaintiff, Margaret Wanjiru Karanja, sworn on 16th July 2013 in which she averred that she is the registered owner of Ruiru/Kiu Block 6/139 measuring approximately 0. 100 hectares in Githurai, Nairobi (hereinafter referred to as the “Suit Property”). She produced a copy of the Certificate of Lease thereof. She further stated that the Defendant has encroached onto the Suit Property and has unlawfully put up permanent structures thereon, claiming the same is Ruiru/Kiu Block 6/680. She further averred that she contracted the services of Geosurv Systems Limited whose findings dated 30th April 2013 revealed that the Defendant is in current occupation of the Suit Property though he was alleging that he is currently in occupation of Ruiru/Kiu Block 6/680. She further stated that it is only just and fair that the said survey be conducted to finally and conclusively determine the boundaries of the Suit Property as well as Ruiru/Kiu Block 6/680.
The Application is not contested. Despite being duly served with the same, the Defendant did not file any response.
After a careful perusal of the Application and the documents annexed thereto, it is clear that the dispute in this suit is simply determining the physical location of the Suit Property. The Plaintiff/Applicant holds the view that the parcel of land occupied by the Defendant is the Suit Property. However, from his Defence, the Defendant’s contention is that the parcel of land which he occupies is not the Suit Property but is Ruiru/Kiu Block 6/680. With this background, it appears to me that the best way to determine this issue is to allow the Government Surveyor to conduct his survey and to file a report in court. To that extent therefore, I consider the Plaintiff/Applicant’s request as merited and see no reason why it should not be allowed. I therefore allow the Application. Costs shall be in the cause.
SIGNED AND DELIVERED AT NAIROBI THIS 28th DAY OF February 2014
MARY M. GITUMBI
JUDGE