[2021] KEELC 4557 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 48 OF 2019

MUDE HUSEIN MOHAMED.........................................1ST PLAINTIFF

RODGERS SAMANYA..................................................2ND PLAINTIFF

HASSAN ABDULAHI ALI............................................3RD PLAINTIFF

JAMES NJENGA NYAGA............................................4TH PLAINTIFF

ABDULRAHMAN WAMALA......................................5TH PLAINTIFF

THE PUBLICAN (AFRICA) LTD...............................6TH PLAINTIFF

VERSUS

MASINDE MULIRO UNIVERSITY

OF SCIENCE AND TECHNOLOGY........................1ST DEFENDANT

TURKANA UNIVERSITY COLLEGE(Being sued as

a Constituent College of the 1st Defendant)...........2ND DEFENDANT

THE COUNTY GOVERNMENT

OF TURKANA.........................................................3RD DEFENDANT

THE COMMISSIONER OF LAND......................4TH DEFENDANT

THE COUNTY SURVEYOR

TURKANA COUNTY............................................5TH DEFENDANT

THE HON. ATTORNEY GENERAL..................6TH DEFENDANT

AND

MOUNT KENYA UNIVERSITY.................INTERESTED PARTY

RULING

1. The application dated 11/5/2020and filed in court on 29/5/202, has been bought under Order 40 Rule 1 (a)of theCivil Procedure Rules.The plaintiffs seek the following orders:-

(1) That upon hearing and determination of this application this honourable court be and hereby pleased to order a survey to be conducted and report be filed in court on the following disputed parcels of land by establishing their actual acreage on the ground:

(a) Land Parcel No. LR.14691/425 Kanamkemer, Lodwar-Turkana County

(b) Plot No. 931

(c) Plot No. 932

(d) Plot No. 829

(e) Plot No. 976 ‘A’

(f) Plot No. 790

(g) Plot No. 920

(h) Plot No. 888.

(2) That the survey report to establish whether land parcel LR No. 14691/425 Kanamkemer, Lodward-Turkana County extends to the main Lodwar-Kitale Road including the plaintiffs/applicants plots descried at prayer 1(b), (c), (d), (e), (f) and (g) above.

(3) The OCS, Lodwar Police Station be directed to maintain peace, supervision and enforcement of the orders of this honourable court.

(4) That costs of the survey be borne by the p plaintiffs/applicants but to ultimately abide by the outcome of the main suit.

(5) That the costs of this application be in the cause.

2. The application is supported by the affidavit sworn on 11/5/2020 by the 1st and 2nd plaintiffs who have authority from the 3rd to 6th plaintiffs herein. The grounds upon which the application is made are that the plaintiff’s case in the plaint is that their plots are separate and distinct from the 1st defendant’s land parcel yet the 1st defendant asserts that the plaintiff’s parcels of land are part of its land hence the need for a survey.

3. The 1st and 2nd defendants through its Ag. Principal, Prof. George Chemining’wa filed replying affidavit sworn on 11/5/2020. His response is that the application lacks merit; that the plaintiffs made specific claims that they had parcel numbers adjacent to the fence in the forecourt of the 2nd defendant’s land and gave their specific plot measurements while the 1st defendant purchased land measuring 42. 02 ha; that the plaintiffs therefore know their actual acreage on the ground; that the issues in respect of the plaintiff’s claim over the defendants’ land is already addressed by this court in its ruling of 13/2/2020 and the plaintiffs are merely intent on secretly introducing new issues and are engaged in a fishing expedition and the only option for them is to set down the suit for hearing.

4. The Interested Party and the 3rd, 4th 5th and 6th respondents were not opposed to the application dated 11/5/2020.

5. The plaintiffs filed their written submissions on 9/12/2020. The 1st and 2nd defendants filed their submissions on 11/1/2021.

6. I have considered the application, the response and the submissions of the parties. The main question that arises for determination is whether a survey should be ordered by the court. This court must therefore address itself whether there is need for such a survey. The argument of the plaintiffs is that there is need to ascertain the acreage of the total sizes of the land occupied by the plaintiffs and the 1st defendant on the ground.

7. Having considered the application, I find that the present dispute is not a boundary dispute, it is a dispute regarding title to land. It is therefore incumbent upon the parties to bring evidence to the fore in order to demonstrate that their plots were properly surveyed, that they exist or that they have titles to them.

8. It is this court’s view that if the processes of allocation and survey of the parties’ respective plots were properly documented by the relevant offices or titles issued pursuant to such allocation and survey, then such evidence as any of the parties requires to prove either the statements in the plaint and defence can only be based on the existing records and not any future records to be created. I do not have any evidence before me that the existing records are not sufficient, when presented adroitly in evidence, to establish each party’s respective claim. In other words this court agrees that the parties already have the evidence with which to prove their respective claims of purchase, allocation, or survey with them and it does not appear necessary for this court to commission a survey in respect of the land. Consequently, this court finds that the application dated 11/5/2020 is unmerited and the same is hereby dismissed with costs to the defendants Nos. 1and2only.

It is so ordered.

Dated, signed and delivered at Kitale via electronic mail on this 26th day of January, 2021.

MWANGI NJOROGE

JUDGE, ELC, KITALE.