[2018] KEELC 3928 (KLR)
The court found that it could not determine the boundary dispute between the parties due to the absence of a legible and proper report from the Land Registrar. The court emphasized its constitutional mandate to ensure substantive justice and noted the turbulent litigation history regarding the plots in question. In...
Source-derived case information.
- Citation
- [2018] KEELC 3928 (KLR)
- Parties
- Plaintiff: Paul Hirbo Isatu; Defendant: Abdirahman Hake
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 113 of 2015
- Procedural Posture
- Land Dispute / Interlocutory Ruling
- Outcome
- Judgment put on hold pending preparation and filing of a report by the Land Registrar, Marsabit County.
- Legal Topics
- Boundary Disputes, Land Registrar Reports, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Hirbo Isatu
Plaintiff
Abdirahman Hake
Defendant
Procedural Posture
Land Dispute / Interlocutory Ruling
Legal Issues
- 1 Whether the court can determine the boundary dispute in the absence of a legible and proper report from the Land Registrar.
- 2 Whether substantive justice requires the court to direct the preparation of a new report to resolve the dispute.
Ratio Decidendi
The court found that it could not determine the boundary dispute between the parties due to the absence of a legible and proper report from the Land Registrar. The court emphasized its constitutional mandate to ensure substantive justice and noted the turbulent litigation history regarding the plots in question. In light of the insufficient material on record, the court exercised its discretion to put the judgment on hold and directed the Land Registrar, assisted by the District Physical Planner and Surveyor, to prepare and file a comprehensive report. The court further ordered the plaintiff to bear the costs of preparing the report and to serve the order on all relevant parties. This...
Court Disposition
Judgment put on hold pending preparation and filing of a report by the Land Registrar, Marsabit County.
Orders
- Judgment is put on hold for Land Registrar, Marsabit County to prepare and file a report concerning the dispute at hand.
- In the preparation of that report, the Land Registrar is to be assisted by the Marsabit District Physical Planner and Surveyor.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO 113 OF 2015
PAUL HIRBO ISATU ………….…..PLAINTIF/APPLICANT
VERSUS
ABDIRAHMAN HAKE ……..DEFENDANT/RESPONDENT
RULING
I find that the Plaintiff’s suit is anchored on the determination made by the land registrar on 14. 12. 11 and implemented on 30:07:14 (going by the Plaint.
When he was testifying on 28:09:17, Plaintiff brought to the attention of the Court, the contents of the documents he is relying on in his case. He has filed two lists. One is that date 03:08:17. It doesn’t contain any Report from the Land Registrar (from item No.1- 9).
The other list of documents is the one filed on 08:12:15. According to Plaintiff, the 7th item is the boundary report of 14:12:15 and indeed in that list of 08:12:15, item No. 7 is indicated that:
“boundary report dated 14th December, 2011 by District Land Registrar, Nairobi in respect of Parcels Marsabit/Mountain /700X1070”.
However, the report itself is dated 18:02:11 and the Ruling thereof is that:-
“I therefore rule that the boundary dispute was not heard and determined as required by Setion 21 (2) of the Registered Lands Act Cap 300…..”
I believe the report that the Plaintiff had meant to form part of his documents is the one identified as annexture “PH 3” in the Plaintiff’s application dated 14:04:17 as this is the report starting with the date of 14th December, However, not only is this report omitted in Plaintiff’s documents relied on during the trial, but it is also not legible especially the last page.
I have therefore nothing to guide me as at now to determine the dispute.
This Court has a mandate, a Constitutional one to ensure that substantive justice is done to all parties pursuant to provisions of article 159 2(d) of the Constitution.
“Justice shall be administered without undue regard to Procedural Technicalities”.
I note that the litigation history concerning the plots in question has been turbulent, having gone through Marsabit CC No. 9 of 2009, Marsabit CC No. 15 of 2014 and the proceedings before the Land Registrar.
This court desires to give orders which would hopefully resolve the dispute once and for all.
As I have said earlier on, this is not possible with the material on record. I therefore give directions as follows:-
1. That the Judgment herein is put on hold for Land Registrar, Marsabit County to prepare and file a report concerning the dispute at hand.
2. In the preparation of that report, the Land Registrar is to be assisted by the Marsabit District Physical Planner and Surveyor.
3. Plaintiff is to meet costs appertaining to or incident to the preparation of the aforementioned report.
4. Plaintiff to serve the order upon the aforementioned parties and defendant.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 20th DAY OF FEBRUARY, 2018 IN THE PRESENCE OF:-
Court Clerk: Janet/Galgalo
Plaintiff Present
HON. L. N. MBUGUA
ELC JUDGE