[2021] KEELC 538 (KLR)
The court found that the dispute was not merely about boundaries but about alleged encroachment by the respondents onto the applicants' property. Given the conflicting claims regarding the location and ownership of the parcels, it was necessary for the County Surveyor to ascertain the ground position of LR...
Source-derived case information.
- Citation
- [2021] KEELC 538 (KLR)
- Parties
- Plaintiff: Parlad Singh Thatti; Plaintiff: Gurminder Kaur Thatti; Defendant: Alice Kiptarus; Defendant: Simon Kahwai alias Mwaura; Defendant: Ediya Robow alias Mama Hassan; Defendant: Peter Ndumia Wanja alias Counsellor
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1012 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Survey and Boundary Ascertainment
- Outcome
- application allowed in part
- Judges
- EO Obaga
- Legal Topics
- Land Boundaries, Encroachment, Survey Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Parlad Singh Thatti
Plaintiff
Gurminder Kaur Thatti
Plaintiff
Alice Kiptarus
Defendant
Simon Kahwai alias Mwaura
Defendant
Ediya Robow alias Mama Hassan
Defendant
Peter Ndumia Wanja alias Counsellor
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Survey and Boundary Ascertainment
Legal Issues
- 1 Whether the court should order a survey to ascertain the boundaries and ground position of LR No.9042/591 in relation to the respondents' properties.
- 2 Whether the applicants have established a prima facie case for the grant of the orders sought.
Ratio Decidendi
The court found that the dispute was not merely about boundaries but about alleged encroachment by the respondents onto the applicants' property. Given the conflicting claims regarding the location and ownership of the parcels, it was necessary for the County Surveyor to ascertain the ground position of LR No.9042/591 in relation to the respondents' parcels (LR No.9042/213, 9042/310, and 9042/320). The court exercised its discretion to order a survey as the most effective way to clarify the factual position and assist in the just determination of the dispute. The report would provide an objective basis for resolving the parties' competing claims.
Court Disposition
application allowed in part
Orders
- The County Surveyor shall move to the ground and ascertain the ground position of LR No.9042/591 in relation to LR No.9042/213, 9042/310, and 9042/320.
- The County Surveyor's report shall be filed in court within 60 days.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT
AT MILIMANI LAW COURTS
ELC CASE NO. 1012 OF 2013
PARLAD SINGH THATTI.............................................................................1ST PLAINTIFF
GURMINDER KAUR THATTI.....................................................................2ND PLAINTIFF
VERSUS
ALICE KIPTARUS......................................................................................1ST DEFENDANT
SIMON KAHWAI ALIAS MWAURA......................................................2ND DEFENDANT
EDIYA ROBOW ALIAS MAMA HASSAN............................................3RD DEFENDANT
PETER NDUMIA WANJA ALIAS COUNSELLOR...............................4TH DEFENDANT
RULING
1. The Plaintiffs/Applicants filed a notice of motion dated 6th July 2015 in which they sought the following orders:-
1) Spent
2) An order be issued to the Land Surveyor Nairobi County to survey the suit property of Land Reference No LR 9042/591 and determine its boundaries and prepare a report on the same.
3) The Report from the Land Surveyor be adopted by this Honorable Court
4) Costs of this application.
2. The Applicants contend that they are the registered owners of LR No.9042/591(suit property). Sometime in 2010, the 1st Applicant fell ill and proceeded to India for specialized treatment. While he was away, the Defendants/Respondents invaded the suit property and constructed on it.
3. The Respondents in their defence contend that they are owners of LR No.9042/213, LR No.9042/310 and LR 9042/320 Tassia Embakasi and that they have no interest in LR No.9042/591. The Applicants therefore contend that for an expeditious conclusion of this case, the court should be ordered to go to the ground and file a report regarding LR No. 9042/591.
4. The Respondents opposed the Applicants’ application based on grounds of opposition dated 26th August 2015. The Respondents contend that the Applicants’ application is frivolous, vexatious and an abuse of the process of the court; that the application is incompetent; misconceived and bad in law and that the orders sought are legally untenable and incapable of being granted.
5. The parties were directed to file written submissions. The Applicants filed their submissions on 25th November 2015. The Respondents filed theirs on 15th December 2016. I have considered the Applicants’ application as well as the opposition to the same by the Respondents. I have also considered the submissions by the parties herein.
6. This Ruling has been pending for over six years because the file went missing. It only resurfaced after an application for reconstruction was made. A look at the case herein shows that the dispute here is not on boundary but rather encroachment. The Respondents who have invaded the Applicants property are simply claiming that they have their own properties which they have named in their defences.
7. It is important for a surveyor to go to the ground to ascertain the position of Plot No.9042/591 in relation to the alleged Plot Nos.LR 9042/213, 9042/310 and 9042/320 Tassia Embakasi.
8. I therefore make the following specific order. Let the County Surveyor move to the ground and ascertain the ground position of LR No.9042/591 in relation to Nos.LR 9042/213, 9042/310 and 9042/320 which are alleged to belong to the Respondents. The report of the County Surveyor should be filed in court within 60 days. Costs of this application shall be in the cause.
IT IS SO ORDERED.
DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 11TH DAY OF NOVEMBER 2021
E.O.OBAGA
JUDGE
In the Virtual absence of parties who were aware of the date of delivery of Ruling.
Court Assistant: Mercy
E.O. OBAGA
JUDGE