[2022] KEELC 3465 (KLR)
The court found that the original judgment granted the plaintiff land by adverse possession on Plot Number MN/II/196, but the dimensions stated (293ft by 7ft) were erroneous. The judgment had directed that a proper survey be conducted before title issuance. The plaintiff produced a survey report showing the correct...
Source-derived case information.
- Citation
- [2022] KEELC 3465 (KLR)
- Parties
- Plaintiff: Joseph Kusiva Ndonyi; Defendant: Nyanya Binti Mohamed; Defendant: Mohammed Saburi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 114 of 2008
- Procedural Posture
- Environment and Land Case / Ruling on Post Judgment Rectification Application
- Outcome
- Application allowed as prayed; land size rectified and vesting order issued.
- Judges
- NA Matheka
- Legal Topics
- Adverse Possession, Rectification of Judgment, Vesting Orders, Survey and Boundaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kusiva Ndonyi
Plaintiff
Nyanya Binti Mohamed
Defendant
Mohammed Saburi
Defendant
Procedural Posture
Environment and Land Case / Ruling on Post Judgment Rectification Application
Legal Issues
- 1 Whether the size of land granted to the plaintiff by adverse possession should be rectified from 293ft by 7ft to 41ft by 100ft.
- 2 Whether a vesting order should issue in favour of the plaintiff for the rectified parcel.
Ratio Decidendi
The court found that the original judgment granted the plaintiff land by adverse possession on Plot Number MN/II/196, but the dimensions stated (293ft by 7ft) were erroneous. The judgment had directed that a proper survey be conducted before title issuance. The plaintiff produced a survey report showing the correct dimensions as 41ft by 100ft, corresponding to the area actually occupied. The application for rectification was unopposed, and the court was satisfied that the error should be corrected to reflect the true position on the ground. The court therefore allowed the application, rectified the size of the land to 41ft by 100ft, and issued a vesting order in favour of the plaintiff.
Court Disposition
Application allowed as prayed; land size rectified and vesting order issued.
Orders
- The size of the land granted to the plaintiff by adverse possession on Plot Number MN/II/196 is rectified to 41ft by 100ft.
- A vesting order is issued vesting the land to the plaintiff.
Full Case Text
Judgment text and source record
21 paragraphs
Ndonyi v Mohamed & another (Administrators of the Estate of the Late Mohammed Bin Saburi Bajuni) (Environment & Land Case 114 of 2008) [2022] KEELC 3465 (KLR) (27 July 2022) (Ruling)
Neutral citation: [2022] KEELC 3465 (KLR)
Republic of Kenya
In the Environment and Land Court at Mombasa
Environment & Land Case 114 of 2008
NA Matheka, J
July 27, 2022
Between
Joseph Kusiva Ndonyi
Plaintiff
and
Nyanya Binti Mohamed
1st Defendant
Mohammed Saburi
2nd Defendant
Administrators of the Estate of the Late Mohammed Bin Saburi Bajuni
Ruling
1. The application is dated 23rd August 2021 and is brought under Order 51 Rule 1 & 2 of the Civil Procedure Rulesseeking the following orders;1. That the size of the land granted to the plaintiff by adverse possession on plot Number MN/11/196 be rectified to 41ft by 100ft and not 393ft by 7ft.2. That vesting order be issued vesting the land to the plaintiff.3. That the costs of this suit be provided for.
2. It is based on the grounds that the plaintiff was awarded by adverse possession land on Plot Number MN/II/196. That the size of the plot was indicated as 293ft by 7ft which was an error. That the judgment had directed proper survey to be done before title is issued. That the older of adverse possession was on strength of a building on the said had which has been surveyed and established to occupy space of 41ft by 100ft. That the plaintiff would wish the size to be rectified and the land be vested on him.
3. This court has considered the application and the supporting affidavit. The application was served but the respondent did not file any response. This court has perused the court record and indeed finds that Justice Mukunya did enter judgement for the applicant by adverse possession land on Plot Number MN/II/196. That the size of the plot was indicated as 293ft by 7ft. The applicant now states that this was an error and the same should be of 41ft by 100ft. a survey report has been attached by a private surveyor indicating the latter. I find that the application is unchallenged and is merited and I grant the same as prayed.It is so ordered.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 27TH DAY OF JULY 2022. N.A. MATHEKAJUDGE