[2024] KEELC 13546 (KLR)
The court found that the present application was merited because the description of the land in the application matched that in the judgment delivered in favour of the Plaintiff. The previous refusal to grant similar orders was due to discrepancies in land description, which were not present in this application. The...
Source-derived case information.
- Citation
- [2024] KEELC 13546 (KLR)
- Parties
- Plaintiff: Joseph Kinyua Mugumo; Defendant: Margaret Muthoni Kingi; Defendant: Land Registrar, Laikipia County; Defendant: The Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 10 of 2021
- Procedural Posture
- Environment and Land Case / Ruling on Post Judgment Application for Security During Boundary Re Establishment
- Outcome
- Plaintiff's application partially allowed; prayer (b) granted; each party to bear its own costs.
- Judges
- AK Bor
- Legal Topics
- Boundary Disputes, Execution of Judgment, Land Registration, Court Orders, Security for Survey, Res Judicata
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kinyua Mugumo
Plaintiff
Margaret Muthoni Kingi
Defendant
Land Registrar, Laikipia County
Defendant
The Hon. Attorney General
Defendant
Procedural Posture
Environment and Land Case / Ruling on Post Judgment Application for Security During Boundary Re Establishment
Legal Issues
- 1 Whether the court should grant the Plaintiff's request for security to the County Land Surveyor during the re-establishment of boundaries for the suit property.
- 2 Whether the application is res judicata in light of previous similar applications and pending appeal.
- 3 Whether the court or the Land Registrar has jurisdiction over the boundary re-establishment process.
Ratio Decidendi
The court found that the present application was merited because the description of the land in the application matched that in the judgment delivered in favour of the Plaintiff. The previous refusal to grant similar orders was due to discrepancies in land description, which were not present in this application. The court held that granting security for the County Land Surveyor to re-establish boundaries was necessary to give effect to its judgment, despite the 1st Defendant's opposition and pending appeal. The court did not find the application to be res judicata as the circumstances and relief sought were sufficiently distinct from the previous application. Each party was ordered to...
Court Disposition
Plaintiff's application partially allowed; prayer (b) granted; each party to bear its own costs.
Orders
- Prayer (b) of the application dated 24/7/2024 is granted: the County Land Surveyor is to be provided security by the OCS Matanya Police Station during the re-establishment of boundaries for Laikipia/Nanyuki West Timau Block 2/618 (Matanya Marura).
- Each party will bear its own costs for the application.
Full Case Text
Judgment text and source record
24 paragraphs
Mugumo v Kingi & 2 others (Environment & Land Case 10 of 2021) [2024] KEELC 13546 (KLR) (22 November 2024) (Ruling)
Neutral citation: [2024] KEELC 13546 (KLR)
Republic of Kenya
In the Environment and Land Court at Nanyuki
Environment & Land Case 10 of 2021
AK Bor, J
November 22, 2024
Between
Joseph Kinyua Mugumo
Plaintiff
and
Margaret Muthoni Kingi
1st Defendant
Land Registrar, Laikipia County
2nd Defendant
The Hon. Attorney General
3rd Defendant
Ruling
1. The Plaintiff filed the application dated 24/7/2024 seeking to have the County Land Surveyor provided security to ensure the peaceful re-establishment of the boundaries for the land known as Laikipia/Nanyuki West Timau Block 2/618 (Matanya Marura) (the suit property) by the OCS Matanya Police Station. The application was made on the ground that this court delivered its judgment in favour of the Plaintiff on 6/6/2022 who now holds the title over the suit property in trust for the beneficiaries of the estate of the late Mwangi Ngatia Kamuku. Further, that on several occasions the County Land Surveyor had tried to reestablish the boundaries for the suit property but the 1st Defendant was hostile and caused a breach of the peace hence the need to have security during that exercise. The Plaintiff swore the affidavit in support of the application and annexed a copy of the title deed issued to him on 19/8/2022.
2. The 1st Defendant swore the replying affidavit in opposition to the application and averred that Section 18 (2) of the Land Registration Act clearly provided that actions and matters related to undetermined boundaries were within the mandate of the Land Registrar making this application a nonstarter. She added that the application was res judicata and that the ruling dated 22/11/2023 seeking eviction orders was dismissed by the court. Moreover, that a similar prayer was made in the application dated 11/9/2023. She maintained that the court having established ownership of the suit property and the Plaintiff having executed the judgment, he ought to seek action regarding boundaries from the office of the Land Registrar instead of moving the court. She accused the Plaintiff of litigating issues in instalments and subjecting her to financial hardship due to the payment of advocate fees. In any case, she had filed Nyeri Civil Appeal No. E085 of 2022 which was awaiting hearing before the Court of Appeal. She urged the court to dismiss the application.
3. The issue for determination is whether the court should grant the orders sought by the Plaintiff to have the surveyor granted security in the exercise to reestablish the boundaries of the suit property with a view to giving effect to the judgment of this court. He contended that in the past, the 1st Defendant was hostile and caused a breach of the peace when the surveyor attempted to go to the land. The 1st Defendant urged that a similar application had been dame before and that she had lodged an appeal against the decision of this court.
4. Looking at the ruling delivered by this court on 22/11/2023, it is clear that the reason why the court declined to grant the orders which the Plaintiff had sought was because of the discrepancies in the description of the land. The description of the land in the present application is the same as what appears in the judgment delivered by this court on 6/6/2022 in favour of the Plaintiff. The application is therefore merited.
5. The court grants prayer (b) of the application dated 24/7/2024. Each party will bear its costs for the application.
DELIVERED VIRTUALLY AT NANYUKI THIS 22ND DAY OF NOVEMBER 2024. K. BORJUDGEIn the presence of: -Mr. T. Mbaaro holding brief for Mr. M. Mwangi for the 1st RespondentMs. Vanessa Muiruri – Court AssistantNo appearance for the Plaintiff and the 2nd and 3rd Defendants