[2019] KEELC 40 (KLR)
The court determined that the dispute between the parties was not limited to boundary demarcation but also involved the history of the land, the manner in which the defendants acquired their titles, and the issue of trespass. The Land Registrar and County Surveyor's report, while informative, did not address all...
Source-derived case information.
- Citation
- [2019] KEELC 40 (KLR)
- Parties
- Plaintiff: Mellen Sarange Maroko; Defendant: Leonard Orori Okioga; Defendant: Charles Oira Okorigi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 22 of 2016
- Procedural Posture
- Land Case / Ruling on Adoption of Surveyor's Report and Directions for Further Hearing
- Outcome
- Application to adopt the surveyor's report as judgment declined; matter to proceed to full hearing.
- Judges
- DO Ogal
- Legal Topics
- Land Boundaries, Trespass, Land Registration, Adverse Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mellen Sarange Maroko
Plaintiff
Leonard Orori Okioga
Defendant
Charles Oira Okorigi
Defendant
Procedural Posture
Land Case / Ruling on Adoption of Surveyor's Report and Directions for Further Hearing
Legal Issues
- 1 Whether the Land Registrar and County Surveyor's report conclusively resolves the boundary and trespass dispute between the parties.
- 2 Whether the report should be adopted as the judgment of the court or the matter should proceed to full hearing.
Ratio Decidendi
The court determined that the dispute between the parties was not limited to boundary demarcation but also involved the history of the land, the manner in which the defendants acquired their titles, and the issue of trespass. The Land Registrar and County Surveyor's report, while informative, did not address all these aspects and therefore could not conclusively resolve the dispute. As such, the court declined to adopt the report as its judgment and directed that the matter proceed to a full hearing, with the report forming part of the court record and the County Surveyor available to be called as a witness by either party.
Court Disposition
Application to adopt the surveyor's report as judgment declined; matter to proceed to full hearing.
Orders
- The County Surveyor's report will form part of the court record.
- Either party may call the County Surveyor as a witness at the full hearing.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISII
E.L.C CASE NO. 22 OF 2016
MELLEN SARANGE MAROKO……………………….…….….PLAINTIFF
VERSUS
LEONARD ORORI OKIOGA…………………….….……1ST DEFENDANT
CHARLES OIRA OKORIGI………………………….……2ND DEFENDANT
RULING
1. The Plaintiff who is the Registered owner of Land parcelL.R NO. EAST KITUTU/BONYAMONDO/ 11/1045 (the suit property) filed suit against the Defendants claiming that they had trespassed on his land. In his Plaint he prays that the Defendants be evicted from the suit property and that the Defendants be restrained from interfering with the suit property.
2. In their Defence and Counterclaim dated 31st March, 2016 the Defendants denies the Plaintiff’s claim and avers that the Plaintiff is holding land parcel No. EAST KITUTU/BONYAMONDO 11/ 1045 fraudulently and that he is therefore not entitled to protection thereof. In their Counterclaim the Defendants pray that the Plaintiff be evicted from the suit property.
3. By consent of the parties the court issued an order dated the 24th July, 2017 directing the Land Registrar and County Surveyor Nyamira County to visit he suit property for purposes of marking the boundaries and fixing beacons on Land parcels Number EAST KITUTU/BONYAMONDO/ 648, 952 AND 1045. They were further required to delineate the Land parcels on a sketch map and show if there are any encroachments by either party after which they were required to file their report in court within 90 days.
4. Pursuant to the said order, the Land Registrar and County Surveyor visited the suit property and the above-mentioned land parcels, took measurements and filed their report dated 2nd April, 2019. In the said report they observed that land parcels L.R No EAST KITUTU/BONYAMONDO/ 11/1045 and 648 exist on the ground and are being utilized. The said parcels of land and their neighboring parcels of land have no permanent boundaries. They also observed that the Defendants have encroached on parcel No 1045 and they have been plucking tea and cutting down trees on the Plaintiff’s land. The report concludes that each of the parties should utilize the land according to the portion he bought.
5. Both the Plaintiff and the Defendants filed their comments on the report.
6. The Defendants faulted the Land Registrar and Count Surveyor for failing to use the Registry Index Map and instead using the mutation forms whose authenticity was said to be in doubt. They were of the view that the report failed to capture the nature and extent of their encroachment on parcel No.1045. Furthermore, it failed to capture the dates of creation of the various interests in land particularly the resultant sub-divisions of land parcel No. EAST KITUTU/BONYAMONDO/11/952 and thereafter the creation of parcel No. EAST KITUTU/BONYAMONDO/11/1045. They submitted that the Land Registrar and County surveyor failed to inspect the original parcel of Land No 648 which was later sub-divided into land parcel No. 952 before it was further sub-divided into parcelsNo. 873, 874. In essence they were of the view that the report as presented could not conclusively resolve the dispute between the Plaintiff and the Defendants.
7. On the other hand, the Plaintiff was of the view that the report was accurate as it captured the nature and extent of encroachment by using her Registry index map as per the annexed sketch map. He submitted that the report ought to be adopted as judgment of the court.
8. Having considered the pleadings, the Nyamira County Surveyor’s report and the rival comments on the report I am of the view that the dispute is not solely one concerning boundaries as it is necessary to understand the history of the land and how the defendants acquired their titles in addition to the issue of trespass. That being the position, I find and hold that the report does not resolve the issues in dispute and therefore it is necessary for the case to proceed to full hearing. The County Surveyor’s report will form part of the court record and either party may call the County Surveyor as a witness to shed more light on his findings.
Dated signed and delivered at Kisii this 17th day of December, 2019
J.M ONYANGO
JUDGE