[2011] KEHC 1063 (KLR)
The court found that the plaintiff had established a sufficient claim for the determination and fixing of the boundary between the two land parcels. The defendant's failure to respond or participate in the proceedings, despite being properly served, left the plaintiff's evidence uncontroverted. The court relied on...
Source-derived case information.
- Citation
- [2011] KEHC 1063 (KLR)
- Parties
- Plaintiff: Mohammed Tariq Gani; Defendant: Dickson Zaki Ogana
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 137 of 2010
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Plaintiff's claim allowed. Orders granted for boundary determination and police security. Costs to the defendant.
- Judges
- HK Chemitei
- Legal Topics
- Boundary Disputes, Land Registry, Survey Demarcation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohammed Tariq Gani
Plaintiff
Dickson Zaki Ogana
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the boundary between land parcels Kisumu/Nyalenda ‘B’/1011 and Kisumu/Nyalenda ‘B’/655 should be determined and fixed.
- 2 Whether the defendant has failed to cooperate in resolving the boundary dispute.
Ratio Decidendi
The court found that the plaintiff had established a sufficient claim for the determination and fixing of the boundary between the two land parcels. The defendant's failure to respond or participate in the proceedings, despite being properly served, left the plaintiff's evidence uncontroverted. The court relied on the statutory mandate of the Land Registry and Survey Department to resolve boundary disputes and ordered them to undertake the necessary rectification. The court also ordered the police to provide security to ensure compliance with the orders.
Court Disposition
Plaintiff's claim allowed. Orders granted for boundary determination and police security. Costs to the defendant.
Orders
- The District Land Registry in conjunction with the relevant survey department to rectify any boundary anomaly between land parcels Kisumu/Nyalenda ‘B’/655 and Kisumu/Nyalenda ‘B’/1011.
- The relevant or nearest police station to provide adequate security to the parties and ensure compliance.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
CIVIL CASE NO. 137 OF 2010
MOHAMMED TARIQ GANI…………………………………….PLAINTIFF
VERSUS
DICKSON ZAKI OGANA……………………………………….DEFENDANT
J U D G M E N T
The plaintiff’s originating summons dated 19-8-2010 raises six (6) fundamental points for determination. The fundamental being that the boundary issue between the plaintiff and the defendant in respect to the portions of land namely Kisumu/Nyalenda ‘B’/1011 and Kisumu/Nyalenda ‘B’655 be determined and fixed.
The other fundamental prayer is that the defendant has been very unco-operative in terms of ensuring that this boundary dispute is sorted out.
The plaintiff took out the originating summons together with the summons to enter appearance. From the pleadings herein the plaintiff was unable to take and serve the defendant necessitating him to make an application dated 13-10-2010 for purposes of serving him via substituted service. The same was allowed and as can be shown advertisement was done on 10-1-2011 vide the Daily Nation newspaper.
This didn’t elicitate any response by the defendant in terms of filing a defence or an appearance.
The defendant has further exhibited correspondence from the District Land Registry wherein the defendant had been notified of the boundary dispute.
Having gone through pleadings and all the supporting evidence, I am satisfied that the plaintiff has established a sufficient claim against the defendant in line with his originating summons.
For these reasons I order that:-
(1)The District Land Registry in conjunction with the relevant survey department do undertake with a view of rectifying any boundary anomaly between land parcels No. Kisumu/Nyalenda ‘B’/655 and Kisumu/Nyalenda’B’/1011.
(2)The relevant and or nearest police station do provide adequate security to the parties and do ensure compliance.
(3)Costs to the defendant.
Dated, signed and delivered at Kisumu this 19th day of October, 2011.
H.K. CHEMITEI
JUDGE
HKC/va