[2024] KEELC 499 (KLR)

Source-derived case information.

Citation: [2024] KEELC 499 (KLR)
Parties: Applicant: Charles Okemwa Nyakangi; Respondent: Attorney General; Respondent: Cabinet Secretary, Ministry of Public Health and Sanitation; Respondent: Constituency Development Fund (West Mugirango); Respondent: Chief Land Registrar; Respondent: Nyamokenye Health Center; Respondent: County Surveyor, Nyamira County
Court: Environment and Land Court
Court Station: Environment and Land Court at Nyamira
Jurisdiction: Kenya
Case Number: Environment & Land Petition 1 of 2021
Procedural Posture: Environment and Land Petition / Ruling on Surveyor Reports and Further Directions
Outcome: Further directions issued; no final determination on merits.
Judges: JM Kamau
Legal Topics: Land Encroachment, Public Land Use, Survey Reports, Land Disputes
Source Language: en

Land and Property Land Encroachment Public Land Use Survey Reports Land Disputes

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Parties

Charles Okemwa Nyakangi

Applicant

Attorney General

Respondent

Cabinet Secretary, Ministry of Public Health and Sanitation

Respondent

Constituency Development Fund (West Mugirango)

Respondent

Chief Land Registrar

Respondent

Nyamokenye Health Center

Respondent

County Surveyor, Nyamira County

Respondent

Procedural Posture

Environment and Land Petition / Ruling on Surveyor Reports and Further Directions

Legal Issues

1 Whether there has been encroachment on Parcel No. Kisii/West Mugirango/Bomabacho/481.
2 Whether Parcel No. Kisii/West Mugirango/Bomabacho/478 is public land reserved for public use.
3 Whether the surveyor and land registrar reports are accurate and conclusive.

Ratio Decidendi

The court found that the Regional Surveyor's report, corroborated by the Land Registrar's report, established that there was no encroachment on Parcel No. Kisii/West Mugirango/Bomabacho/481 and that Parcel No. Kisii/West Mugirango/Bomabacho/478 is public land reserved for public use. However, due to the petitioner's disagreement and the existence of a contrary surveyor's report, the court directed that the authors of all relevant reports, including the petitioner's surveyor, appear in court to defend their findings. The court's decision was guided by the need for a fair determination based on expert evidence and the principle that public land cannot be appropriated for private use without...

Court Disposition

Further directions issued; no final determination on merits.

Orders

Authors of the Regional Surveyor's, Land Registrar's, and Petitioner's Surveyor's reports to appear in court to defend their reports.

Full Case Text

Judgment text and source record

30 paragraphs

Nyakangi v Attorney General & 5 others (Environment & Land Petition 1 of 2021) [2024] KEELC 499 (KLR) (30 January 2024) (Ruling)

Neutral citation: [2024] KEELC 499 (KLR)

Republic of Kenya

In the Environment and Land Court at Nyamira

Environment & Land Petition 1 of 2021

JM Kamau, J

January 30, 2024

Between

Charles Okemwa Nyakangi

Plaintiff

and

Attorney General

1st Defendant

Cabinet Secretary, Ministry of Public Health and sanitation

2nd Defendant

Constituency Development Fund (West Mugirango)

3rd Defendant

Chief Land Registrar

4th Defendant

Nyamokenye Health Center

5th Defendant

County Surveyor, Nyamira County

6th Defendant

Ruling

1. Before me are Reports by the Regional Surveyor dated 16th November 2023 pursuant to the order issued by this court on 27/7/2023. It needs to go on record that the order to have the Regional Surveyor carry out this exercise was necessitated by persistent and deliberate failure to carry out the same by the County Surveyor, Mr. Abuga. The terms of reference were to visit the suit land and determine the existence of encroachment and if so, the size of the same.

2. The Regional Surveyor said that the pointed out that theparcel of land has a Health Center built thereon. He concluded his Report by saying that there is no encroachment to Parcel No. Kisii/West Mugirango/Bomabacho/481 and that Kisii/West Mugirango/Bomabacho/478 is a public land reserved for the Gusii County Council, the precursor to Nyamira County Government, for public use. As expected, the 5th Respondent agrees with this Report.

3. On the other hand, the Petitioner disagrees with the Report. This Report tallies with that of the Land Registrar, Mr. George K. Maina dated 31/5/2023.

4. In the circumstances, I invite the Authors of the above two Reports together with the Petitioner’s Surveyor’s Report to defend their Reports in court.

5. Ruling dated, signed and delivered at Nyamira this 30th day of January 2024.

MUGO KAMAUJUDGEIn the presence of: -C/A: BrendaPetitioner present in personRespondent – Ms. Moeche for the 5th Respondent

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