[2020] KEELC 3126 (KLR)
The court found that the application was aimed at facilitating the implementation of its earlier judgment, which had already determined the parties' rights over the suit land. Since the boundaries had been tampered with, making execution of the decree impossible, it was just and necessary to order the County...
Source-derived case information.
- Citation
- [2020] KEELC 3126 (KLR)
- Parties
- Plaintiff: Sarah Thara; Defendant: Jamlick Kinyua Njoka
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 129 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Post Judgment Application for Boundary Delineation
- Outcome
- Application allowed in part; prayers 2 and 3 granted.
- Legal Topics
- Boundary Delineation, Execution of Judgment, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sarah Thara
Plaintiff
Jamlick Kinyua Njoka
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Post Judgment Application for Boundary Delineation
Legal Issues
- 1 Whether the court should order the County Surveyor and District Land Registrar to delineate and mark the boundaries of Land Parcel Nos. MAGUMONI/ITUGURURU/1035, 1036, and 1037.
- 2 Whether the plaintiff is entitled to enforcement assistance to implement the court's judgment regarding the suit land.
Ratio Decidendi
The court found that the application was aimed at facilitating the implementation of its earlier judgment, which had already determined the parties' rights over the suit land. Since the boundaries had been tampered with, making execution of the decree impossible, it was just and necessary to order the County Surveyor and District Land Registrar to visit the site and delineate the boundaries. The absence of opposition from the defendant, despite service, further supported granting the orders sought. The court thus allowed the application to the extent of granting the operative prayers for boundary delineation and police supervision, with costs for implementation to be borne by the plaintiff.
Court Disposition
Application allowed in part; prayers 2 and 3 granted.
Orders
- The Tharaka Nithi County Surveyor and/or District Land Registrar to visit and delineate and/or ascertain and mark the boundaries for Land Parcel Nos. MAGUMONI/ITUGURURU/1035, 1036, and 1037 under the supervision of O.C.S Chuka police station.
- This order to be served upon the O.C.S. Chuka Police Station for compliance.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC CASE NO. 129 OF 2017
FORMERLY MERU ELC NO. 25 OF 2011
SARAH THARA.............................PLAINTIFF
VERSUS
JAMLICK KINYUA NJOKA....DEFENDANT
RULING
1. This application is dated 19th March, 2020 and seeks the following orders:
1. That this application be certified urgent and service dispensed with in the first instance.
2. That the Honourable court be pleased to order, direct and or authorize Tharaka Nithi County Surveyor and / or District Land Registrar to visit and delineate and / or ascertain and mark the boundaries for Land Parcel NO. MAGUMONI/ITUGURURU/1035,1036 and 1037 under the supervision of O.C.S Chuka police station.
3. That this order be served upon the O.C.S. Chuka Police Station for compliance.
4. The costs of this application be provided for.
2. The application has the following grounds:
1. The applicant’s lands’ boundaries cannot be traced on the ground.
2. The applicant is the sole registered owner and or proprietor of the Land Parcel NO. MAGUMONI/ITUGURURU/1035,1036 and 1037 respectively.
3. The applicant ought to enjoy the fruits of his judgment delivered by this Honourable Court on 27th June, 2018.
4. There is due need to ascertain the boundaries of the three parcels of land in the interest of justice.
3. The application is supported by the affidavit of Sarah Thaara, the plaintiff sworn on 19th March, 2020 and which states:-
I, SARAH THARA of P. O. Box 225 IKUU, Chuka within the Republic of Kenya do hereby make oath and state as follows:
1. That I am the plaintiff/applicant herein well versed with the facts of this case hence competent to swear this affidavit.
2. That am the registered owner and/or proprietor of suit land Nos. MAGUMONI/ITUGURURU/1035,1036 and 1037 respectively all of which are subject matter of this case (annexed here with and marked ST 1a, 1b, & 1c are copies of title certificates).
3. That this case was finalized on 25th June, 2018 (annexed here with and marked ST2 is a copy of court decree dated 17th July, 2018).
4. That a decree was issued ordering the O.C.S Chuka police station to facilitate implementation of the same.
5. That the said land boundaries were tampered with thereby making it next to impossible to identify the beacons and/or to execute the anticipated decree of this Honourable court.
6. That it is therefore prudent and justified to order the district land registrar/surveyor for Tharaka Nithi County and/or any other qualified surveyor to visit the site and delineate, fix and ascertain the boundaries of the suit land thereof and furnish the court with the outcome.
7. That all the facts deposed to herein above are true to the best of my knowledge, belief and information.
4. When the application came up for hearing only the plaintiff was in court. The defendant even though he had been served with the application was not in court.
5. I find that the application is intended to facilitate the implementation of this court’s judgment delivered on 27th June, 2018.
6. In the circumstances, I issue the following orders:-
a. Prayers 2 and 3 in the application are granted.
b. Costs concerning implementation of the orders issued concerning prayer 2 are to be met by the plaintiff.
c. I issue no order as to costs.
Written and delivered in open Court at Chuka this 7th day of April, 2020 in the presence of:
CA: Ndegwa
Sarah Thara – plaintiff
P. M. NJOROGE,
JUDGE.