[2018] KEELC 951 (KLR)
The court found that neither party had produced survey maps or title deeds for the disputed parcels, nor had the court been invited to conduct a site visit. Given the nature of the dispute—boundary identification and possible encroachment—the court held that the Land Registrar and Surveyor, as official custodians...
Source-derived case information.
- Citation
- [2018] KEELC 951 (KLR)
- Parties
- Petitioner: Samson Ole Tina; Respondent: The Director of Land Adjudication & Settlement; Respondent: The Chief Land Registrar; Respondent: The District Land Registrar, Trans-Mara; Respondent: The Attorney General; Respondent: Denis Kinyamal Nairenke; Respondent: Simeon Leteipa Nairenke; Respondent: Joseph Nasieku Kimani; Respondent: Simon R. Ole Mas; Respondent: Moses Talala Sialo; Respondent: Dominic Kionga Lomanat
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 14 of 2017
- Procedural Posture
- Constitutional Petition / Ruling on Interlocutory Application for Site Visit and Expert Report
- Outcome
- application allowed
- Judges
- MN Kullow
- Legal Topics
- Boundary Disputes, Land Adjudication, Survey Reports, Land Registration, Court Orders for Expert Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Samson Ole Tina
Petitioner
The Director of Land Adjudication & Settlement
Respondent
The Chief Land Registrar
Respondent
The District Land Registrar, Trans-Mara
Respondent
The Attorney General
Respondent
Denis Kinyamal Nairenke
Respondent
Simeon Leteipa Nairenke
Respondent
Joseph Nasieku Kimani
Respondent
Simon R. Ole Mas
Respondent
Moses Talala Sialo
Respondent
Dominic Kionga Lomanat
Respondent
Procedural Posture
Constitutional Petition / Ruling on Interlocutory Application for Site Visit and Expert Report
Legal Issues
- 1 Whether the court should order the Land Registrar and Surveyor to visit the disputed parcels and file a report on boundaries and possible encroachment.
- 2 Whether such a report is necessary for the just determination of the boundary dispute between the parties.
Ratio Decidendi
The court found that neither party had produced survey maps or title deeds for the disputed parcels, nor had the court been invited to conduct a site visit. Given the nature of the dispute—boundary identification and possible encroachment—the court held that the Land Registrar and Surveyor, as official custodians and experts, are best placed to clarify the boundaries and any existence of a separating road. The court determined that obtaining an official report would assist in reaching a just and fair decision, and that the application was merited. The court thus ordered the Land Registrar Trans Mara and the Surveyor, under the supervision of the Rift Valley Regional Surveyor, to visit the...
Court Disposition
application allowed
Orders
- The Land Registrar Trans Mara and the Surveyor are directed to visit Plot No. 15 Olalui Adjudication Section and Plot No. 163 Ololchani Adjudication Section to identify boundaries and confirm if a road separates the parcels.
- A report of the findings is to be filed in court within 30 days.
Full Case Text
Judgment text and source record
48 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAROK
PETITION NO. 14 OF 2017
FORMERLY KISII PET. NO.4 OF 2010
IN THE MATTER OF ARTICLE 22, 23(3) AND 40 OF THE CONSTITUTION, 2010
IN THE MATTER OF VIOLATION AND OR INFRINGEMENT
ON THE PROPERTY RIGHTS OF THE PETITIONER
AND
IN THE MATTER OF OLALUI REGISTRATOIN SECTION
AND
IN THE MATTER OF REGISTERED LAND ACT, CHAPTER 300 LAWS OF KENYA
AND
IN THE MATTER OF LR. NO.TRANSMARA/OLALUI/15
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA (SUPERVISORY
JURISDICTION AND PROTECTION OF FUNDAMENTAL RIGHTS AND
FREEDOMS OF THE INDIVIDUAL) HIGH COURT
PRACTICE AND PROCEDURE RULES, 2006
AND
IN THE MATTER OF SECTION 19(SIXTH SCHEDULE) OF THE CONSTITUTION, 2010
SAMSON OLE TINA...................................................PETITIONER
-VERSUS-
THE DIRECTOR OF LAND ADJUDICATION & SETTLEMENT
THE CHIEF LAND REGISTRAR
THE DISTRICT LAND REGISTRAR, TRANS-MARA
THE ATTORNEY GENERAL
DENIS KINYAMAL NAIRENKE
SIMEON LETEIPA NAIRENKE
JOSEPH NASIEKU KIMANI
SIMON R.OLE MAS
MOSES TALALA SIALO
DOMINIC KIONGA LOMANAT............................RESPONDENTS
RULING
At the conclusion of the hearing of the witnesses in the matter, the Applicant made an Application for the court to order the Land Registrar Trans Mara and Surveyor to visit the suit land and file a report in court in respect of the exact boundaries of plot No. 15 Olalui Adjudication Section and Plot No. 163 Ololchani Adjudication Section and to confirm if there is any overlapping and encroachment of each of the plot onto another and further confirm if there exists a road that cut though the aforesaid parcels of land.
The Application was opposed by counsel for the Defendants arguing that the Petitioners are on a fishing expedition and want to use the report to improve their case. The Respondents further stated that in the event that the court asks for the report, the Regional Surveyor’s Office should be involved.
I have heard the submissions in the instant Application and the testimonies of the witnesses and this suit is one that relates to a boundary dispute involving the parties in respect of the two parcels of land namely Plot No. 15 Olalui Adjudication Section and plot number 163 Ololchani Adjudication Section. During their testimonies none of the parties produced any survey map or title deed in respect of the two parcels of land or was the court invited by any of the parties to visit the suit so as to have a physical view of the 2 parcels of land and in the circumstances, I find that the Application by the Petitioner is merited.
Since the Land Registrar Trans Mara and the Surveyor are the official custodian of all maps and documents in respect of the parcels of land, it is worth noting at this juncture that the provisions of section 18 and 19(1) of the Land Registration Act it is the said registrar one qualified and mandated to fix boundaries and hence his report in respect of the dispute herein will assist the court in arriving at a just and fair decision.
In view of the above, I direct that the Land Registrar Trans Mara and the Surveyor do visit the two parcels of land with a view to identifying the boundaries, confirm if a road separates the two parcels and file a report in court within 30 days. I further direct that the above exercise should be conducted under the direct supervision of the Rift Valley Regional Surveyor.
DATED, SIGNED and DELIVERED in open court at NAROK on this 26th day of October, 2018.
Mohamed N. Kullow
Judge
26/10/18
In the presence of:
Ms Adala holding brief for Ogutu for the Plaintiff
Ms Saika holding brief for O.M. Otieno for the 5th to 10th Respondent
Ms Kerubo holding brief for Mutari for the 1st to 4th Defendants
CA:Chuma