[2018] KEELC 2300 (KLR)
The court found that the applicant was not in control of the timing of the land registration process and could not be faulted for seeking to amend the petition at this stage. The issuance of a title deed constituted a material change in the legal regime governing the dispute, justifying the amendment. The court also...
Source-derived case information.
- Citation
- [2018] KEELC 2300 (KLR)
- Parties
- Applicant: Remus Cyrprian Banu Saimon Muturi alias Remus Banu Muturi; Respondent: Stephen Nturibi Itirikia
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- ? Petition15 of 2013
- Procedural Posture
- Environment and Land Petition / Ruling on Interlocutory Application for Leave to Amend Petition and Scene Visit
- Outcome
- Application allowed in part; leave to amend petition granted; scene visit ordered; costs as directed.
- Legal Topics
- Land Registration, Boundary Disputes, Jurisdiction of Environment and Land Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Remus Cyrprian Banu Saimon Muturi alias Remus Banu Muturi
Applicant
Stephen Nturibi Itirikia
Respondent
Procedural Posture
Environment and Land Petition / Ruling on Interlocutory Application for Leave to Amend Petition and Scene Visit
Legal Issues
- 1 Whether the applicant should be granted leave to amend the petition to reflect the suit land as registered land.
- 2 Whether the court has jurisdiction to determine the dispute in light of section 18 of the Land Registration Act.
- 3 Whether a scene visit by the land registrar and surveyor should be ordered to ascertain the location of the disputed parcels.
Ratio Decidendi
The court found that the applicant was not in control of the timing of the land registration process and could not be faulted for seeking to amend the petition at this stage. The issuance of a title deed constituted a material change in the legal regime governing the dispute, justifying the amendment. The court also determined that the dispute was not a purely boundary matter, as it involved allegations of forgery and broader issues regarding title and mapping in the area. Consequently, the court held that its jurisdiction was not ousted by section 18 of the Land Registration Act. The court further found that a scene visit by the land registrar and surveyor was necessary to clarify the...
Court Disposition
Application allowed in part; leave to amend petition granted; scene visit ordered; costs as directed.
Orders
- Applicant is granted leave to amend the petition and to file and serve the same within 7 days from the date of delivery of this ruling. Respondent may file and serve any response within 7 days of service of the amended petition.
- The land registrar in conjunction with the surveyor (Meru North) is directed to visit the scene and file a joint report regarding the dispute on the suit land.
Full Case Text
Judgment text and source record
44 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC PET NO. 15 OF 2013
REMUS CYRPRIAN BANU SAIMON MUTURI ALIAS
REMUS BANU MUTURI ............. PETITIONER/APPLICANT
VERSUS
STEPHEN NTURIBI ITIRIKIA ...................... RESPONDENT
RULING
1. The application dated 19. 2.2018 seeks the following orders:
i. That the application be certified urgent and it be heard on priority basis.
ii. That the petitioner/applicant be granted leave to amend his petition to reflect the suit land as a registered parcel of land, since it is no longer under the adjudication stage.
iii. That the Deputy Registrar or the Executive Officer of this court be directed to visit the locus in quo in the presence of a government surveyor, parties and their respective counsel, to ascertain the actual location on the ground, of the subject parcels of land and a report be filed in court.
iv. That costs of this application to abide the outcome of the petition.
2. The grounds in support of the application are:
i. That the area map is now available for purposes of the intended scene visit.
ii. That the dispute herein concerns encroachment into the petitioner’s land by the respondent
iii. That a scene visit report would easily assist to determine this case.
iv. That the suit land is now registered and the title deed issued to the petitioner/applicant
v. That there is urgent need to amend the petition and plead the suit land as registered land.
vi. That no party shall be prejudiced by the relief sought.
3. Applicant has also sworn an affidavit dated 19. 8.2018 whereby he has availed an annexure to show that the suit land is now registered under the land registration Act.
4. The application is opposed vide the replying affidavit of Stephen Nturibi Itirikia (sworn on 6. 3.2018)
5. Respondent avers that the map availed by petitioner as RCB 2 is a forgery. He also avers that previously there was a scene visit conducted by the Deputy Registrar, the physical planner and surveyor which was not fruitful as petitioner had protested against the exercise.
6. Respondent also avers that the court lacks jurisdiction to adjudicate on the issues in dispute in view of the provisions of section 18 of the land registration Act.
Determination
7. I have considered all the arguments raised herein and submissions of the parties.
Whether the prayer for amendment is merited.
8. I have seen annexure “RC B1”. It is a title deed in the name REMUS BANU MUTHUURI for land parcel no. Tigania West/Akithi III/1388. It was issued on 25. 4.2017.
9. It follows that the legal regime under which the suit land falls under has now changed. The applicable law regarding this dispute is the land registration Act. Applicant was certainly not in control of the process of this. He cannot therefore be faulted for bringing the application at this stage. In the circumstances the court will allow the prayer for amendment.
Jurisdiction
10. Respondent contends that this court has no jurisdiction to determine the matter pursuant to section 18 of the Land Registration Act, whereas petitioner is of the view that the court has jurisdiction.
11. In paragraph 8 of the replying affidavit of the respondent (filed on 30. 8.2013), respondent states as follows; “I am consternated and it is even laughable for the applicant to state that my plot no. 30 immediately borders his plot where as that is not the case”.In his Replying affidavit dated 6. 3.2018, Respondent further states that there is a common problem running in respect of titles issued in the area of Tigania and Nyambene. He also claims that the maps are forged. Isn’t this a clear indication that the dispute is not a purely boundary one?. I find that the case of Patrick Musimba versus National Land Commission & 3 others Nairobi High Court. Constitutional petition no. 613/14 is distinguishable from the present case.
12. The suit land is now registered, it would be very essential to have the input of the land registrar and any other officer with expertise in the area of dispute.
13. In the circumstances I proceed to give the following orders:
a. Applicant is granted leave to amend the petition and to file and serve the same within 7 days from date of delivery of this ruling. The Respondent is at liberty to also file and serve any Response thereof within 7 days from the date of service of the amended Petition.
b. I hereby direct that the land registrar in conjunction with the surveyor (Meru North) do visit the scene and file a joint report regarding the dispute on the suit land.
c. Each party is to bear their own cost regarding this application. However, Petitioner is to meet the costs of the scene visit.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 25TH DAY OF JULY, 2018 IN THE PRESENCE OF:-
Court Assistant:Janet/Galgalo
Carlpeters Mbaabu for petitioner
Miss Rimita holding brief for K. Muriuki for respondent
Petitioner
HON. LUCY. N. MBUGUA
ELC JUDGE