https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4832

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KWALE** **ELC CIVIL SUIT NO. 41 OF 2021** **PHILIP JOHN MASINDE ..................... PLAINTIFF/APPLICANT** * **VERSUS -** **DIANI OASIS LIMITED ............ 1ST DEFENDANT/RESPONDENT** **THE HON. ATTORNEY** **GENERAL……………………… 2ND DEFENDANT/RESPONDENT** **RULING** 1. **Introduction** 2. What is before this Honourable Court for its determination is the Notice of Motion application dated 11th November, 2025 filed by *Philip John Masinde,* the Plaintiff/Applicant herein. 3. The application was brought pursuant to the provisions of Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21, Section 18 (2) of the Land Registration Act, No. 3 of 2012 and all other enabling provisions of the law. 4. Upon service, the application was opposed by the 1st Defendant/Respondent vide a Replying Affidavit dated 3rd December, 2025. The Honourable Court shall be dealing with it at a later stage of this Ruling. 5. **The case by the Plaintiff/Applicant** 6. The Plaintiff/Applicant sought for the following orders:- 7. ***Spent.*** 8. ***That pending the hearing and determination of the application herein, this Honourable Court be pleased to order a stay of the proceedings in this matter.*** 9. ***That the Land Registrar and the County Surveyor, Kwale, be authorized to visit the suit property, to wit Title No. L.R. No. 23159/Shimoni/Kwale, and carry out a boundary verification exercise, and file a report in court within such period as the court may direct.*** 10. ***That the costs of this application be in the cause.*** 11. The application is premised on the eight (8) grounds on its face and the testimonial facts and averments contained in the eleven (11) Paragraphed Supporting Affidavit of PHILIP JOHN WANYAMA MASINDE, the Applicant herein, sworn and dated the 11th day of November, 2025 together with three (3) annexures marked as “PJWM – 1 to 3” annexed thereto. 12. The Applicant deponed as follows that:- 13. He was a male adult of sound mind and understanding and the Plaintiff/Applicant hence competent to swear this Affidavit in this matter. 14. The matter had been pending before Court since the year 2010, having been originally filed as “***Mombasa HCCC No. 462 of 2010 – Philip J.W – Versus - Diani Oasis Limited & Another”,*** and now registered as ***“ELC No. 41 of 2021”***. He annexed a copy of the current case title page marked as “PJWM – 1”. 15. Upon his current Advocates on record - the Law firm of Messrs. Gikandi & Company Advocates - taking over the conduct of this matter from the previous advocates, he was advised to undertake a survey to ascertain the true position of the boundaries relating to the suit property known as L.R. No. 23159/Shimoni/Kwale (Hereinafter referred to as “The Suit Property”). 16. From the Grant annexed to the application, the suit property measures approximately 2.035 Hectares held under a Leasehold tenure for a term of Ninety Nine (99) years with effect from 1st February, 1991, registered in the name of the Applicant as CR. 30936. 17. A survey was subsequently carried out by Messrs. Techsurvey Services, and a topocadastral survey report dated 18th September, 2025 filed after completion of the exercise, annexed and marked as “PJWM – 2”. 18. According to the said report, it emerged that there was a boundary mix-up involving some of the plots surrounding the suit property. 19. The report indicated overlaps between the suit property and the neighbouring parcels being L.R. Nos. 29873, 29874 and 29913 as reflected against Survey Plans F/R Nos. 385/16 and 385/17. 20. In order to resolve the said issue, he instructed his advocates to write to the Kwale Land Registry requesting for a boundary verification and ratification exercise vide a letter dated 29th September, 2025, annexed and marked as “PJWM – 3”. 21. However, the Land Registrar, who was a party to this suit through the 2nd Defendant/Respondent, orally indicated upon receipt of the said letter that since the office was a party to the proceedings herein, it could not undertake such an exercise without an order of the Court. 22. It was therefore necessary that this Honourable Court grants leave for the Land Registrar and the County Surveyor, Kwale, to conduct the boundary verification exercise, as the said exercise would greatly assist the Court in establishing the true position of the boundaries, thus facilitating a just and expeditious determination of this matter. 23. No prejudice would be occasioned to the Respondents if the orders sought were granted. 24. Finally, the Applicant deponed that the main suit was listed for hearing on 19th November, 2025, hence the need to stay any further proceedings in this case pending the hearing and determination of the application to ensure justice and fairness. 25. **Response by the 1st Defendant/Respondent** 26. The 1st Defendant/Respondent – Diani Oasis Limited filed a Replying Affidavit dated 3rd December, 2025 in opposition to the application on the grounds, deponed *inter alia,* as follows:- 27. This Honourable Court lacks the requisite jurisdiction to deal with the verification and rectification of land boundaries;. 28. There was no common boundary between the parties’ parcels of land. 29. The issue before Court was not a boundary dispute. 30. The instant application never met the exceptional circumstances required for a stay of proceedings. 31. The 1st Defendant/Respondent asserted that there was no boundary mix-up at all. It relied on the survey report annexed to the Applicant’s own affidavit marked as “PJWM – 2” which, in its view, was clear that the Applicant’s land did not border any of the 1st Defendant/Respondent’s properties. 32. The said report specifically stated that the beacons for L.R. Nos. 29865 to 29871 were found to be intact and correctly positioned on the ground and had no encroachments, and that L.R. No. 23159 did not border or overlap any of its client’s properties, the overlaps being as between F/R Nos. 284/184 and 239/14 on the one part and F/R Nos. 385/17 and 385/16 on the other part. 33. It contended that both the Plaintiff/Applicant’s and the 1st Defendant/Respondent’s reports indicated that the overlap affected only third parties’ plots – to wit L.R. Nos. 29913, 29874 and 29873 – which parties were not enjoined in these proceedings. 34. Hence the proposed second survey would not in any way be helpful in this suit. It further took issue with the fact that this suit was originally filed in the year 2010 and had been in Court for at least fifteen (15) years. 35. Thus, the principle of expeditious disposal of matters had already been greatly violated. 36. **Submissions** 37. On 27th January, 2026 while all the parties were all present in Court, direction were granted on having the expeditious disposal of the application by way of written submissions. 38. Subsequently, all parties complied. Hence, the Honourable Court reserved 13th Julys, 2926 as the date to deliver the Ruling accordingly. 39. **The Written Submissions by the Plaintiff/Applicant** 40. The Learned Counsel for the Plaintiff/Applicant, the Law firm of Messrs. Gikandi & Company Advocates, filed their written submissions dated 18th June, 2026. Mr. Gikandi held that the submission was in support of the application, together with Further Submissions dated 2nd July, 2026 correcting certain clerical errors on the dates appearing in the earlier submissions, and clarifying that the application under consideration was the one dated 11th November, 2025 and the Replying Affidavit thereto was the one dated 3rd December, 2025. 41. This Court accepted the said corrections, being of a purely clerical nature and occasioning no prejudice whatsoever to the Defendants/Respondents. 42. The Learned Counsel framed the issue for determination as being whether the Plaintiff/Applicant had laid a sufficient basis for the grant of orders to facilitate verification and ascertainment of the disputed boundary through the relevant statutory offices. 43. The Learned Counsel submitted that prior to filing the present application, the Plaintiff/Applicant invoked the statutory process contemplated under the provision of Sections 18 and 19 of the Land Registration Act, No. 3 of 2012 by writing to the Land Registrar, Kwale vide the letter dated 29th September, 2025 requesting for the boundary verification and ascertainment to be carried out. The Land Registrar, being a party to these proceedings, was unable to act on the said request, understandably because undertaking the exercise while the matter was pending before Court could be construed as acting outside and/or ahead of the Court process. Thus, the Plaintiff/Applicant could not be faulted for approaching the Court for appropriate directions after demonstrating willingness to invoke and pursue the statutory process before seeking judicial intervention. 44. While conceding that the provision of Sections 18 and 19 of the Land Registration Act, No. 3 of 2012 vest the initial mandate of boundary ascertainment upon the Land Registrar, the Learned Counsel argued that where a land matter was pending before Court and the Land Registrar was one of the parties to such proceedings, it would be illogical and unrealistic to expect the Land Registrar to discharge the powers conferred under the said provisions, as such a situation would create the impression that the Land Registrar was acting as though he were above the Court in proceedings to which he is a party. 45. The Learned Counsel invited the Court to apply and interpret the provision of Section 18 in a purposeful manner devoid of undue technicalities in line with the provision of Article 159 ( 2 ) ( d ) of the Constitution of Kenya, 2010, and further relied on Article 162 (2) (b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act, No. 19 of 2011 which confer jurisdiction upon this Court, including the power to issue appropriate reliefs and directions necessary for the determination of the dispute before it. 46. To buttress this position, the Learned Counsel relied on the decision of:- “***Peter Muthama Kivai – Versus - David Wambua & 2 Others [2017] eKLR”*** where the Court, despite observing that disputes relating to unfixed boundaries ordinarily fall within the mandate of the Land Registrar under provision of Section 18 of the Land Registration Act, declined to strike out the proceedings and instead directed the Land Registrar and the District Surveyor to visit the suit properties, prepare a report and undertake the necessary boundary ascertainment and fixing exercise. He further relied on the case of:- “***Snowball Investment Limited – Versus - Principal Registrar of Titles & 4 Others; Kencont Logistics Services Limited & Another (Third Party) [2023] KEELC 16810 (KLR)”***, a decision rendered by this very Court (LL. Naikuni J), where the importance of strict compliance with the statutory procedure in land administration disputes was underscored and the Court directed that the proper statutory process of a Court-sanctioned survey be undertaken afresh. 47. Finally, invoking the inherent jurisdiction and the overriding objective provisions under Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21 as read together with Article 159 of the Constitution of Kenya, 2010, and relying on the Court of Appeal decision in “***Hunker Trading Company Limited – Versus - Elf Oil Kenya Limited, Civil Application No. 6 of 2010 [2010] eKLR”*** on the application of the oxygen principle, the Learned Counsel submitted that a boundary verification exercise would easily crystallize the dispute herein, facilitate its substantive resolution, ensure the efficient use of judicial resources and the timely disposal of the proceedings at a cost affordable to the parties, and that none of the Respondents had demonstrated any prejudice that would be occasioned if the application were granted. 48. In the long run, he urged the Court to allow the application with costs to the Plaintiff/Applicant. 49. **The Written Submissions by the 1st Defendant/Respondent** 50. The Learned Counsel for the 1st Defendant/Respondent, the Law firm of Messrs. Mathew Nyabena & Company Advocates, filed their written submissions dated 30th March, 2026 in opposition to the application. Mr. Nyabena Advocate identified two main issues for determination – whether the Court has the jurisdiction to deal with land verification and rectification matters in the manner proposed by the Plaintiff/Applicant; and whether the instant application meets the threshold for a stay of proceedings. 51. On jurisdiction, the Learned Counsel relied on the definition of jurisdiction in **Words and Phrases Legally Defined, Vol. 3: 1 - N at Page 113** and the celebrated holding in the case of:- “***Owners of the Motor Vessel “Lilian S” – Versus - Caltex Oil (Kenya) Limited (Civil Appeal 50 of 1989) [1989] KECA 48”*** to the effect that jurisdiction is everything and without it a Court has no power to make one more step. He submitted that in a matter where the verification and rectification of boundaries is sought, the avenue with the requisite jurisdiction is the Land Registrar and the Surveyor, and not this Honourable Court, since the Land Registration Act has an elaborate process on how boundary disputes are to be initiated and resolved without the requirement of a suit or a Court order. He anchored this submission on the provision of Section 18 (2) of the Land Registration Act, No. 3 of 2012 which provides that the Court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with that Section. In his view, the Plaintiff/Applicant was putting the cart before the horse, there being no evidence of the filing of the requisite forms and payment of fees, and in any event, were the Registrar to fail to perform his statutory duty, the Fair Administrative Action Act had elaborate provisions on how the Plaintiff/Applicant should proceed. 52. On the stay of proceedings, the Learned Counsel described the application as an interesting scenario where a party sought for a stay of his own suit to the detriment of the Defendant/Respondent, in violation of the principle of public policy – ***Ex dolo malo non oritur actio*** – as enunciated by Lord Mansfield, C.J. in “***Holman – Versus - Johnson [1775 - 1802] All E.R. 98”*** as cited in “***Ahmednasir Abdikadir & Co. Advocates – Versus - National Bank of Kenya Limited [2006] KEHC 3261”***. He further relied on the guiding principles on stay of proceedings summarized in “***Christopher Ndolo Mutuku & Another – Versus - CFC Stanbic Bank Limited [2015] KEHC 6751”*** and on “***Turbo Highway Eldoret Ltd – Versus - Muniu (Civil Appeal E040 of 2021) [2022] KEHC 10197 (KLR)”*** where it was reiterated, citing **Halsbury’s Laws of England, 4th Edition, Vol. 37 at page 330**, that a stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards trial, a radical remedy to be exercised sparingly and only in exceptional circumstances. 53. In conclusion, the Counsel averred that this suit, having been originally filed in the year 2010 as Civil case number “***Mombasa HCCC No. 462 of 2010”*** and having been in Court for at least fifteen (15) years, the principle of expeditious disposal of matters had already been greatly violated, and that save for further delays, there was absolutely no other reason whatsoever to warrant a stay of the proceedings herein. If there was any issue regarding verification and rectification of boundaries, then the same ought to be addressed to the right channel – the Land Registrar and the Surveyor. 54. The Counsel urged the Court to dismiss the application with costs and allow the suit to proceed for expeditious disposal. 55. **Analysis and determination** 56. I have fully considered the Notice of Motion application dated 11th November, 2025 by the Plaintiff/Applicant herein, the Replying Affidavit dated 3rd December, 2025 by the 1st Defendant/Respondent, the written submissions and the cited authorities by the Learned Counsels for the parties, the relevant provisions of the Constitution of Kenya, 2010 and the statutes. 57. In order to arrive at an informed, reasonable and fair decision, the issues before the Honorable Court for its determination are four (4). These are: - 58. ***Whether this Honourable Court is clothed with the requisite jurisdiction to entertain and grant the orders sought in the Notice of Motion application dated 11th November, 2025.*** 59. ***Whether the Applicant has met the threshold for the grant of an order of stay of proceedings.*** 60. ***Whether the Notice of Motion application dated 11th November, 2025 has merit, and if so, what appropriate orders and directions should issue.*** 61. ***Who will bear the costs of the application dated 11th November, 2025.*** ***ISSUE No. a). Whether this Honourable Court is clothed with the requisite jurisdiction to entertain and grant the orders sought in the Notice of Motion application dated 11th November, 2025.*** 1. Under this sub-heading, the Honourable Court shall primarily address the question of jurisdiction being a preliminary point which goes to the root of the matter. Jurisdiction means a courts power to decide case or issue a decree. From the very onset, on the issue of Jurisdiction of a Court of Law, I am compelled to cite now “*the Classicus locus”* famous case of:- ***“Owners of Motor Vessel “Lilian S” – Versus - Caltex Oil (Kenya) Limited (1989) IKLR”*** dealt with a court, jurisdiction thus: - ***“Jurisdiction is everything. Without it, a court has no powers to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of the proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion it is without jurisdiction…………where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before Judgement is given”.*** ***16. Additionally, still on the same point, in the case of “County Government of Migori – Versus - I N B Management IT Consultant Limited (2019) eKLR” whereby court being faced with an objection regarding jurisdiction, analyzed the law and observed as follows: -*** ***“10- The jurisdiction point raised by the Respondent herein clearly meets the foregone criteria being a pure point of law. That jurisdiction is everything is a well settled principle in law. My Lordship Ibrahim, JSC in Supreme court of Kenya Civil application No 11 of 2016- “Hon (Lady) Justice Kalpana H Rawal - Versus - Judicial Service Commission and others when in demystifying jurisdiction quoted from the decision in Supreme court of Nigeria supreme case No 11 of 2012- “Ocheja Immanuel Dangama – Versus - Hon. Atoi Aidoko Aliaswan and 4 others where Walter Samuel Nkanu Onnoghen, JSC and expressed himself as follows; -*** ***“......it is settled that jurisdiction is the life blood of any adjudication because a court or tribunal without jurisdiction is like an animal without blood, which means it is dead. A decision by a court or tribunal without requisite jurisdiction is a nullity dead on arrival and of no legal effect whatever that is why an issue of jurisdiction is granted and fundamental in adjudication and has to be dealt with first and foremost.....”*** 1. Similarly, the Court of Appeal stated in the case of:- ***Nakuru Civil Appeal No. 119 of 2017 Public Service Commission & 2 Others – Versus - Eric Cheruiyot & 16 Others consolidated with Civil Appeal No. 139 of 2017 County Government of Embu & Another – Versus - Eric Cheruiyot & 15 Others (unreported)***in a decision rendered on 8th February, 2022 expressed itself on the doctrine of jurisdiction in general as follows: *“****Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally Defined”, Volume 3 at Page 113 defines court jurisdiction as follows: By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given”.*** 1. The provision of Article 162 (2)(b) of the Constitution states that this Court shall have jurisdiction over disputes relating to the environment, the use and occupation of, and title to land. In addition, the provision of Section 13 of the Environment and Land Court Act, No. 19 of 2011 expounds on the jurisdiction of this Court as follows: **“(1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.** **(2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes—** **(a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;** **(b) relating to compulsory acquisition of land;** **(c) relating to land administration and management;** **(d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and** **(e) any other dispute relating to environment and land.”** 1. In the instant case, the wholesome bone of contention between the parties revolves around the interpretation on the import of the provision of Sections 18 and 19 of the Land Registration Act, No. 3 of 2012 which provides as follows:- **“18. Boundaries** **(1) Except where, in accordance with Section 20, it is noted in the register that the boundaries of a parcel have been fixed, the cadastral map and any filed plan shall be deemed to indicate the approximate boundaries and the approximate situation only of the parcel.** **(2) The court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section.** **(3) Except where, it is noted in the register that the boundaries of a parcel have been fixed, the Registrar may, in any proceedings concerning the parcel, receive such evidence as to its boundaries and situation as may be necessary:** **Provided that where all the boundaries are defined under Section 19 (3), the determination of the position of any uncertain boundary shall be done as stipulated in the Survey Act, (Cap. 299).”** 1. It is the argument by the 1st Defendant/Respondent that by dint of Section 18 (2) aforesaid, this Court has no business at all with anything touching on the boundaries of the suit property until the Land Registrar has determined them. With tremendous respect to the Learned Counsel, that is not my appreciation on the reading and interpretation of the provision. In my own assessment, what the provision of Section 18 (2) of the Act ousts is the jurisdiction of the Court to entertain and determine, on the merits, a dispute as to the boundaries of registered land before the statutory boundary ascertainment process has been undertaken. The provision does not, and cannot, oust the jurisdiction of the Court – in a suit properly before it – to issue directions facilitating the very statutory offices contemplated under Sections 18 and 19 of the Act to discharge their mandate. Indeed, the instant application does not invite this Court to itself ascertain, fix, verify or rectify any boundary. It invites the Court to authorize and direct the Land Registrar and the County Surveyor, Kwale – the statutory office holders – to do so and to file a report in Court. That is a horse of a completely different colour. 2. The peculiar circumstances of this case fortify this position. The Plaintiff/Applicant demonstrated, through the letter dated 29th September, 2025 marked “PJWM – 3”, that he first invoked the statutory process by formally moving the Land Registrar, Kwale to undertake the boundary verification exercise. The Land Registrar declined to act on the said request for the reason that the office, being a party to these proceedings through the 2nd Defendant/Respondent, could not undertake the exercise while the matter was pending before Court without an order of the Court. Notably, the 2nd Defendant/Respondent has neither filed any response to controvert this averment nor opposed the application. The averment therefore stands uncontroverted. The Plaintiff/Applicant cannot be accused of putting the cart before the horse when he in fact led with the horse, and it is the statutory office which, for understandable reasons of deference to the Court process, declined to move. 3. This approach finds firm support in the jurisprudence cited by the Plaintiff/Applicant. In the case of:- ***Peter Muthama Kivai – Versus - David Wambua & 2 Others (Supra)***, Hon. Justice O.A. Angote, upon finding that the dispute before him related to unfixed boundaries, observed that in view of Section 18 of the Land Registration Act the suit should not have been filed in the first place, but nonetheless, and for tranquility to prevail, proceeded to direct the Machakos Land Registrar and the Machakos District Surveyor to visit the parcels of land in question, prepare a report in respect of the boundaries within sixty (60) days and fix the said boundaries, with each party at liberty to appoint a private licensed surveyor to accompany them. Similarly, in the case of “***Snowball Investment Limited – Versus - Principal Registrar of Titles & 4 Others (Supra)”***, this very Court, differently constituted at Mombasa, sanctioned and supervised a Court-led survey exercise by the Coast Regional Surveyor in aid of the determination of a boundary dispute, and went further to expunge a survey report procured in defiance of the terms of the Court’s orders and to direct a fresh exercise in strict compliance therewith. The two decisions recognize that judicial intervention may properly issue for purposes of ***facilitating the statutory offices*** (emphasis is mine) to discharge their mandate where the circumstances so require, and this Court, being a Court of record bound by consistency, adopts the same reasoning. 4. In the same vein, the provision of Article 159 (2) (d) of the Constitution of Kenya, 2010 enjoins this Court to administer justice without undue regard to procedural technicalities. It would be the height of technicality – and a jurisprudential merry-go-round – for this Court to fold its hands and send the Applicant back to a Land Registrar who has already indicated that he cannot act without an order of this Court, only for the Applicant to return here upon the inevitable stalemate, perhaps this time through the more circuitous route of the Fair Administrative Action Act as proposed by the 1st Respondent. Logic and common sense dictate that the issue of verification be dealt with under the umbrella of this Court so that appropriate orders may issue one way or the other depending on the merits of the case. 5. Consequently, based on the fore going reasoning, I find and hold that this Honourable Court is properly seized of the requisite jurisdiction to entertain the application and to issue the facilitative directions sought. ***ISSUE No. b). Whether the Applicant has met the threshold for the grant of an order of stay of proceedings.*** 1. Under this sub – heading the Honourable Court shall be critically assessing the aspect of staying proceedings pending before Court or any judicial bodies. The principles governing the grant of a stay of proceedings are well settled. As correctly submitted by the Learned Counsel for the 1st Defendant/Respondent, and as restated in the cited case of “***Turbo Highway Eldoret Limited – Versus - Muniu (Supra)*** and ***Christopher Ndolo Mutuku & Another – Versus - CFC Stanbic Bank Limited (Supra)”***, a stay of proceedings is a serious, grave and fundamental interruption of a party’s right to conduct his litigation towards trial. It is a radical remedy to be exercised sparingly and only in exceptional circumstances, with the sole question being whether it is in the interest of justice to order the stay, bearing in mind the need for expeditious disposal of cases and the scarcity and optimum utilization of judicial time. 2. Applying the said principles to the instant application, I am not persuaded that any exceptional circumstances exist to warrant a stay of these proceedings. This suit has been pending in the corridors of justice since the year 2010 – a period of over fifteen (15) years down the line – which is by any standard not only inordinate, unreasonable but also unacceptable. It is these cases that are creating unnecessary backlog of cases in court, a situation eroding the public trust and confidence in judiciary. Certainly, this trend must be discouraged completely in this constitutional dispensation. It goes against the legal Maxim under the provision of Article 159 ( 2 ) (b) of the Constitution of Kenya, 2010 – **“Justice delayed is Justice Denied”.** 3. A stay of proceedings at this stage would only compound that delay and would run counter to the overriding objective under the provision Sections 1A and 1B of the Civil Procedure Act, Cap. 21, Section 3 of the Environment & Land Court Act, No 19 of 2011 and the command of Article 159 (2) (b) of the Constitution that the objective shall be to enable Courts facilitate the just, expeditious, proportionate and accessible resolution of disputes governed by law. In any event, the boundary verification exercise which forms the substratum of the application can comfortably be undertaken and the report filed in Court in the intervening period before the hearing of the main suit, without the necessity of a formal stay. Indeed, by the effluxion of time, the hearing date of 19th November, 2025 in respect of which the stay was principally sought has long lapsed, rendering that limb of the application largely spent having been overtaken by events whatsoever. 4. For these reasons, therefore, the prayer for stay of proceedings fails and is hereby declined. ***ISSUE No. c). Whether the Notice of Motion application dated 11th November, 2025 has merit, and if so, what appropriate orders and directions should issue.*** 1. Under this Sub – heading, arising from the expansive analysis caused above, the issues herein have now become manageable and easy to tackle by this Honourable Court. To begin with, having found that the Court has jurisdiction to issue facilitative directions, the next port of call is whether, on the material placed before the Court, such directions are deserved. From the affidavit evidence before me, it is common ground that the surveys conducted by both parties disclose an overlapping of parcels on the ground. The Plaintiff/Applicant’s topocadastral survey report by Messrs. Techsurvey Services dated 18th September, 2025 depicts the suit property, L.R. No. 23159, color banded in red, overlapping with L.R. Nos. 29873, 29874 and 29913 to varying extents. On its part, the 1st Defendant/Respondent’s survey report marked as “PJMW – 2” equally acknowledges that F/R Nos. 284/184 and 239/14 overlap on F/R Nos. 385/17 and 385/16, albeit while asserting that the suit property does not border or overlap any of the 1st Defendant/Respondent’s properties. In other words, the two rival expert reports agree that something is amiss on the ground; they only disagree on whose parcels are affected and to what extent. That is precisely the kind of factual quagmire that an independent, Court-sanctioned verification exercise by the statutory offices is designed to resolve. 2. The 1st Defendant/Respondent argued that the overlaps affect only third parties who are not enjoined in these proceedings and that the exercise would therefore be of no utility. With respect, that argument cuts the other way. If, as the 1st Defendant/Respondent contends, the verification exercise will confirm that its parcels are unaffected, then it stands to suffer no prejudice whatsoever from the exercise; if, on the other hand, the exercise reveals otherwise, then the exercise will have served the interests of justice by laying bare the true position on the ground. Either way, the verification will easily crystallize the dispute herein, and may even assist the parties to readily see for themselves the true position on the ground and possibly take steps to resolve the dispute. That is the very essence of the Oxygen principle enshrined under the provision of Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21 and Section 3 of the Environment & Land Act, No. 19 of 2011 as expounded by the Court of Appeal in the case of ‘***Hunker Trading Company Limited – Versus - Elf Oil Kenya Limited (Supra)*** – the just determination of proceedings, the efficient use of the available judicial and administrative resources, and the timely disposal of proceedings at a cost affordable to the respective parties. As to the interests of the third-party registered owners of the affected neighbouring parcels, the same shall be safeguarded through the notification directions issued hereinbelow. 3. Nevertheless, this Court is alive to the painful lessons of the “***Snowball Investment Limited (Supra)”*** decision, where a Court-sanctioned survey exercise was reduced to a nullity on account of the failure to properly notify and involve all the affected parties. To forestall any such mischief, the directions to issue herein shall incorporate strict safeguards on notice, participation and the filing of affidavits of service, so that the resultant report is one that has not only integrity, a sense of belonging, ownership but also well verified. In the long run, and subject to the said safeguards, I find that the Notice of Motion application dated 11th November, 2025 is partially merited to the extent of prayer No. 3 thereof. ***ISSUE No. d). Who will bear the costs of the application.*** 1. It is well established that costs are at the discretion of the Court. Costs is the award that a party is granted at the conclusion of a legal action and proceedings in any litigation. The provision of Section 27 (1) of the Civil Procedure Act, Cap. 21 provides that costs follow the event. By event, it means the result of the legal action and/or proceedings in any litigation. 2. In the instant case, although the Plaintiff/Applicant has substantially succeeded in prosecuting his application, taking into account that the application succeeded only in part and that this matter is still proceeding on to full trial, it is just fair and reasonable that the costs of the application be in the cause. **VII. Conclusion & Disposition** 1. In the long run, having conducted an elaborate analysis of the framed issues herein, the Honorable Court based on the principles of Preponderance of Probabilities and the balance of convenience, finds that the Notice of Motion application dated 11th November, 2025 is partially merited. Thus, the Court proceeds to make the following specific orders: - 2. **THAT the Notice of Motion application dated 11th November, 2025 by the Plaintiff/Applicant be and is hereby partially allowed in the terms set out hereunder.** 3. **THAT the prayer for stay of the proceedings herein be and is hereby declined.** 4. **THAT the Land Registrar, Kwale and the County Surveyor, Kwale be and are hereby authorized and directed to visit the suit property known as *L.R. No. 23159/Shimoni/Kwale* together with the neighbouring parcels of land known as L.R. Nos. 29872, 29873, 29874 and 29913, and to conduct a boundary verification and ascertainment exercise thereon in accordance with the provisions of Sections 18 and 19 of the Land Registration Act, No. 3 of 2012, and thereafter prepare and file in Court a comprehensive report covering the brief historical background, the observations, conclusions and recommendations, WITHIN THE NEXT SIXTY (60) DAYS from the date of this ruling.** 5. **THAT each party be and is hereby granted liberty to engage their own independent Private Licensed Land Surveyor to accompany the Land Registrar, Kwale and the County Surveyor, Kwale during the afore said boundary verification exercise.** 6. **THAT the Land Registrar, Kwale, in liaison with Counsel for the Plaintiff/Applicant, shall notify all the parties herein, and the registered owners of the said neighbouring parcels of land, of the date, time and venue of the boundary verification exercise by way of both physical and electronic notices at their well-known addresses and/or offices of operation, at least Seven (7) days prior to the exercise, and an affidavit of service to be filed in Court under the provision of Order 5 Rule 15 and Rule 22B of the Civil Procedure Rules, 2010.** 7. **THAT the costs of the boundary verification exercise shall be borne by the Plaintiff/Applicant in the first instance, but shall ultimately abide the outcome of the main suit.** 8. **THAT for the sake of expediency, the matter be mentioned on 16th November, 2026 before the ELC No. 1 Kwale for the ascertainment of compliance with these orders, the confirmation of the filing of the report, and the fixing of the main suit for hearing on a priority basis.** 9. **THAT the costs of the application dated 11th November, 2025 to be in the cause.** **IT IS SO ORDERED ACCORDINGLY.** **RULING DELIVERED THROUGH MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS ……13TH…… DAY OF …………JULY…………, 2026.** **…….…………………………….** **HON. JUSTICE L. L. NAIKUNI** **ENVIRONMENT & LAND COURT** **AT** **KWALE** **Ruling delivered in the presence of:** 1. Mr. Daniel Disii, the Court Assistant. 2. Mr. Kinyanjui Advocate holding brief for Mr. Gikandi Advocate for the Plaintiff/Applicant. 3. Mr. Nyabena Advocate for the 1st Defendant/Respondent. 4. No appearance for the 2nd Defendant/Respondent.