[2024] KEELC 13777 (KLR)

Oluoch v Nyawalo & 2 others (Environment & Land Case 609 of 2015) [2024] KEELC 13777 (KLR) (10 December 2024) (Ruling)

Neutral citation: [2024] KEELC 13777 (KLR)

Republic of Kenya

In the Environment and Land Court at Kisumu

Environment & Land Case 609 of 2015

SO Okong'o, J

December 10, 2024

Between

Nelly Atieno Oluoch

Plaintiff

and

Damaris A Nyawalo

1st Defendant

Milton Obote Kwach

2nd Defendant

Kenya Bankers Cooperative Savings & Credit Society Limited

3rd Defendant

Ruling

1. There is a dispute about the location of all that parcel of land known as Kisumu/Kogony/2955 (Plot No. 2955) owned by the Plaintiff. Plot No. 2955 has a title and exists on the Registry Index Map for Kisumu Kogony Registration Section but does not exist on the ground. The Plaintiff has contended that the 2nd Defendant who is the registered owner of the parcel of land known as Kisumu/Kogony/2956 (Plot No. 2956) has encroached on the entire parcel of land comprised in Plot No. 2955. Plot No. 2955 and Plot No. 2956 are subdivisions of a formerly larger parcel of land that was owned by the 3rd Defendant. The 3rd Defendant through the Kisumu District Surveyor, a Mr. Odila subdivided the hitherto larger parcel of land into several portions, Plot No. 2955 and Plot No. 2956 inclusive. The 3rd Defendant allocated Plot No. 2955 and Plot No. 2956 which measured 0. 05Ha. each to the Plaintiff and the 1st Defendant respectively. The 1st Defendant sold Plot No. 2956 to the 2nd Defendant who owned two other parcels of land in the neighbourhood. The 1st Defendant and the Plaintiff were members of the 3rd Defendant. Evidence has been led that during the plot allocation, both the Plaintiff and the 1st Defendant were shown Plot No. 2955 and Plot No. 2956 on the ground and the beacons marking their boundaries.

2. The 1st and 2nd Defendants have denied encroaching on Plot No. 2955. On its part, the 3rd Defendant has averred that the dimensions and the location of Plot No. 2955 and Plot No. 2956 were confirmed and fixed on the ground. The 3rd Defendant has denied any wrongdoing on the said disappearance of Plot No. 2955 from the ground.

3. To unravel this mystery of the lost parcel of land, two survey reports have been filed. The first survey report was prepared and filed in court by the Kisumu District Surveyor one Francis Owara on 28th May 2012. According to this report, Plot No. 2955 does not exist on the ground. The location where the parcel of land is supposed to be has been fenced off with a stone wall that has been put up around land parcels Kisumu/Kogony/2956, Kisumu/ Kogony/2957 and Kisumu/Kogony/2958. This surveyor recommended that since the map and ground measurements of the various plots formerly owned by the 3rd Defendant on the block on which Plot No. 2955 existed differed, it was necessary for all the parcels of land on the block to be identified and their measurements harmonized. The other survey report was prepared by Hamilton Odhiambo of Beacon Point Surveyors. This report was filed in court on 16th May 2018. According to this report, Plot No. 2956 has encroached onto Plot No. 2955 by 11. 5 meters. This surveyor recommended that the map that was used by the 3rd Defendant to allocate among others, Plot No. 2955 and Plot No. 2956 should be employed to place boundary beacons on the ground as it was the one that was used to show the various allottees their parcels of land. The surveyor stated that the existing Registry Index Map was plotted erroneously and does not tally with the position of the plots on the ground.

4. The suit has been heard and both parties have closed their cases. After the close of the 1st and 2nd Defendants’ case on 7th October 2024, the Plaintiffs made an oral application for the court to order that a fresh survey be conducted and a report filed in court to assist the court unravel this mysterious disappearance of Plot No. 2955 from the ground. The application was opposed by the advocates for the 1st and 2nd Defendants who argued that the Plaintiff was seeking the assistance of the court to fish for new evidence as there was nothing new that had come up that would call for clarification through a new survey report. The 1st and 2nd Defendants argued that the survey reports referred to earlier have been on record and as such their contents are not new. The 1st and 2nd Defendants submitted that there is an order on record made on 24th June 2014 for the 3rd Defendant’s surveyor who had originally done the survey work to go to the suit property together with the surveyors appointed by the Plaintiff and the other defendants and do a re-survey work to identify Plot No. 2955 and Plot No. 2956 and to file a report in court within 60 days. The 1st and 2nd Defendants argued that this order was not complied with and that instead, the Plaintiff unilaterally conducted her own survey through Beacon Point Surveyors in 2018. The 1st and 2nd Defendants argued that the survey report on record by the District Surveyor did not support the Plaintiff’s case and that the Plaintiff was now trying to fill up the gaps in her case which should not be allowed. The 3rd Defendant did not object to the application, it argued that no party would suffer prejudice if the application was allowed. In a rejoinder, the 1st and 2nd Defendants submitted that it was the 3rd Defendant who had the responsibility under the order made on 24th June 2014 to arrange for a resurvey and that despite several requests, they did not comply with the order. The 1st and 2nd Defendants wondered what had caused a sudden change of heart.

5. I have considered the Plaintiff’s application and the submissions by the advocates for the parties. It is not disputed that on 24th June 2014, the court made an order by consent of the parties that a resurvey be carried out by the 3rd Defendant’s surveyor who did the initial survey with the assistance of surveyors appointed by the Plaintiff and the other Defendants to identify the boundaries of Plot No. 2955 and Plot No. 2956. It is common ground that that order was not complied with. I have perused the two survey reports on record. The two surveyors have come up with a recommendation on what in their view may assist in resolving the dispute between the parties herein over the location and boundaries of Plot No. 2955. I am of the view that what they have recommended is what the court had intended to achieve through the order of 24th June 2014. I am of the view that a resurvey of the two parcels of land by the surveyor who did the initial survey with the assistance of the surveyors appointed by the Plaintiff and the 1st and 2nd Defendants would assist the court in arriving at an informed and just decision in this matter. I am of the view that none of the parties would be prejudiced if the order of 24th June 2014 was complied with. Once a resurvey is done and a report filed in court, the court will allow all the parties to examine the 3rd Defendant’s surveyor who will be responsible for preparing the report, on his report.

6. In conclusion, I allow the Plaintiff’s oral application and direct that the order made herein on 24th June 2014 be complied with forthwith. The re-survey report shall be filed in court within 60 days from the date hereof. The 3rd Defendant’s advocates shall liaise with the advocates for the Plaintiff and the 1st and 2nd Defendants to ensure that they are given an opportunity to be represented by a surveyor of their choice during the re-survey exercise. Delivered and Dated at Kisumu on this 10th day of December 2024

S. OKONG’OJUDGERULING DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM IN THE PRESENCE OF:Mr. Kinara for the PlaintiffsMs. Anuro h/b for Mr. Otieno for the 1st and 2nd DefendantsMs. Omondi for the 3rd DefendantMs. J.Omondi-Court Assistant