[2024] KEELC 5675 (KLR)
The court found that the reports by the Regional Surveyor and Land Registrar did not resolve all the issues raised in the pleadings and therefore could not form the basis of a final judgment. However, the reports did affirm the current status of occupation and utilization of the disputed parcels of land. The court...
Source-derived case information.
- Citation
- [2024] KEELC 5675 (KLR)
- Parties
- Plaintiff: Charles Okemwa Nyakangi; Defendant: Attorney General; Defendant: Cabinet Secretary, Ministry of Public Health and Sanitation; Defendant: Constituency Development Fund (West Mugirango); Defendant: Chief Land Registrar; Defendant: Nyamokenye Health Center; Defendant: County Surveyor, Nyamira County
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1 of 2021
- Procedural Posture
- Environment and Land Case / Ruling on Surveyor's Report and Admissibility of Reports
- Outcome
- Reports admitted as part of the record; authors of reports and petitioner's surveyor allowed to defend their reports in court; no final judgment rendered.
- Judges
- JM Kamau
- Legal Topics
- Land Encroachment, Public Land Use, Admissibility of Expert Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Okemwa Nyakangi
Plaintiff
Attorney General
Defendant
Cabinet Secretary, Ministry of Public Health and Sanitation
Defendant
Constituency Development Fund (West Mugirango)
Defendant
Chief Land Registrar
Defendant
Nyamokenye Health Center
Defendant
County Surveyor, Nyamira County
Defendant
Procedural Posture
Environment and Land Case / Ruling on Surveyor's Report and Admissibility of Reports
Legal Issues
- 1 Whether there was encroachment on Parcel No. Kisii/West Mugirango/Bomabacho/481.
- 2 Whether the reports by the Regional Surveyor and Land Registrar resolved the issues in dispute.
- 3 Whether the reports should be admitted as part of the court record and their authors allowed to defend them in court.
Ratio Decidendi
The court found that the reports by the Regional Surveyor and Land Registrar did not resolve all the issues raised in the pleadings and therefore could not form the basis of a final judgment. However, the reports did affirm the current status of occupation and utilization of the disputed parcels of land. The court ruled that these reports may be admitted as part of the record and that their authors, as well as the petitioner's surveyor, may be called as witnesses to defend their findings. The court emphasized the need for all parties to have the opportunity to challenge or support the expert evidence through cross-examination and further proceedings.
Court Disposition
Reports admitted as part of the record; authors of reports and petitioner's surveyor allowed to defend their reports in court; no final judgment rendered.
Orders
- The reports by the Regional Surveyor and Land Registrar are admitted as part of the court record.
- The authors of the above reports and the petitioner's surveyor are allowed to defend their reports in court.
Full Case Text
Judgment text and source record
29 paragraphs
Nyakangi v Attorney General & 5 others (Environment & Land Case 1 of 2021) [2024] KEELC 5675 (KLR) (25 July 2024) (Ruling)
Neutral citation: [2024] KEELC 5675 (KLR)
Republic of Kenya
In the Environment and Land Court at Nyamira
Environment & Land Case 1 of 2021
JM Kamau, J
July 25, 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 is a Report 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 parcel 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, the Court finds that the Reports did not resolve all the issues raised in the pleadings and could therefore not be the basis of a Judgment. But the Reports affirmed the status of occupation and utilization of the disputed parcels of land. They could also be used and admitted as part of the record by either party and any of the authors of the Reports could be called as witnesses to produce the Reports. I would allow the Authors of the above Reports together with the Petitioner’s Surveyor’s Report to defend their Reports in court.
RULING DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 25TH DAY OF JULY 2024. MUGO KAMAUJUDGEIn the presence of: -C/A: BrendaPetitioner present in personRespondent – Ms. Moeche for the 5th Respondent