[2013] KEHC 6758 (KLR)
The court declined to dismiss the suit at the defendants' request because the plaintiffs had not been heard on the surveyors' findings or on the application to dismiss. The judge held that, in the absence of the plaintiffs' consent or submissions, it would be contrary to the principles of natural justice to make a...
Source-derived case information.
- Citation
- [2013] KEHC 6758 (KLR)
- Parties
- Plaintiff: Peter Ndukuthyo; Plaintiff: Patrick Manga Kamunyu; Plaintiff: Adan Eidn Mahamud; Defendant: Peter Mbuthia Mwaura; Defendant: Westwood Properties Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 116 of 2013
- Procedural Posture
- Environment and Land Case / Ruling on Application to Dismiss Suit After Surveyor's Report
- Outcome
- Application to dismiss suit declined; suit remains pending until plaintiffs are heard.
- Judges
- MM Gitumbi
- Legal Topics
- Land Parcel Identification, Boundary Disputes, Survey Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Ndukuthyo
Plaintiff
Patrick Manga Kamunyu
Plaintiff
Adan Eidn Mahamud
Plaintiff
Peter Mbuthia Mwaura
Defendant
Westwood Properties Ltd
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application to Dismiss Suit After Surveyor's Report
Legal Issues
- 1 Whether the disputed land parcels exist on the ground and their physical boundaries and locations.
- 2 Whether the land occupied by the defendants is the same as that claimed by the plaintiffs.
- 3 Whether the suit should be dismissed in the absence of the plaintiffs' consent.
Ratio Decidendi
The court declined to dismiss the suit at the defendants' request because the plaintiffs had not been heard on the surveyors' findings or on the application to dismiss. The judge held that, in the absence of the plaintiffs' consent or submissions, it would be contrary to the principles of natural justice to make a final determination. The court emphasized that all parties must be given an opportunity to be heard, especially where a consent order has structured the process and the outcome may affect substantive rights.
Court Disposition
Application to dismiss suit declined; suit remains pending until plaintiffs are heard.
Orders
- The suit is not dismissed at this juncture.
- The matter will await the plaintiffs' views before further orders are made.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
ENVIRONMENT AND LAND DIVISION
ELC. CASE NO. 116 OF 2013
PETER NDUKUTHYO……………………..……1ST PLAINTIFF/APPLICANT
PATRICK MANGA KAMUNYU……………....2ND PLAINTIFF/APPLICANT
ADAN EIDN MAHAMUD………………..……3RD PLAINTIFF/ APPLICANT
(Suing as the Officials of MAASAI VILLAGE SELF HELP WOMEN GROUP)
VERSUS
PETER MBUTHIA MWAURA…………....1ST DEFENDANT/RESPONDENT
WESTWOOD PROPERTIES LTD…..…2ND DEFENDANT/ RESPONDENT
RULING
By a consent order entered into and adopted by all parties herein, the parties agreed to have their selected surveyors and the Thika District Surveyor proceed to the ground and submit their finds on three issues.
Whether land parcel Thika Municipality Block 6/1065 formerly unsurveyed Industrial Plot No. A. Thika does exist on the ground and if it does what are its physical boundaries and location on the ground.
Whether land parcel L. R. No. 4953/293 Thika Municipality does exist on the ground and if it does what are its physical boundaries and location on the ground.
Whether the land on which the Defendant have erected a perimeter wall and are in occupation is the same land as that being claimed by the Plaintiffs.
In deed the three surveyors did go to the ground and compiled their report dated 22nd April, 2013 in which they expressed the following findings.
That the two parcels of land do exist and are about 1. 2 Kilometers apart.
That L. R. No. 4953/2193 has a perimeter wall which is under construction by the Plaintiff. They also found that this is the same parcel of land being claimed by the Plaintiff.
That Thika Municipality Block 6/1065 is fully occupied but has no physical boundary.
These findings are now on the court record.
I note however that in their consent, the parties herein did not agree on how the court should treat these findings. The last time this matter was in Court on 22nd May 2013, only the Defendant was present in court and expressed the sentiments that the court should make a final ruling on the pending application and main suit and proceed to dismiss the suit.
In my considered opinion, I do not see that I have the liberty to do so in the absence of the Plaintiff’s consent. I therefore decline to dismiss this suit at this juncture until I hear the Plaintiff’s view.
It is so ordered.
SIGNED AND DELIVERED AT NAIROBI
ON THE 1ST DAY OF NOVEMBER 2013.
MARY M. GITUMBI
JUDGE