[2018] KEELC 2479 (KLR)
The court found that the dispute did not amount to a boundary dispute warranting a court-ordered survey and demarcation. The plaintiff had produced a valid title and search certificate for the suit land, and there was no evidence of a genuine boundary dispute. The court held that if the defendants required a...
Source-derived case information.
- Citation
- [2018] KEELC 2479 (KLR)
- Parties
- Plaintiff: Shadrack Kipsoimo Tripop; Defendant: Philemon Magut; Defendant: Eliud Magut; Defendant: Julius Magut; Defendant: David Magut
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 133 of 2016
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs to the plaintiff
- Legal Topics
- Boundary Disputes, Land Registration, Survey and Demarcation
- 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
Shadrack Kipsoimo Tripop
Plaintiff
Philemon Magut
Defendant
Eliud Magut
Defendant
Julius Magut
Defendant
David Magut
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the dispute between the parties constitutes a boundary dispute requiring court-ordered survey and demarcation.
- 2 Whether the court should grant orders for identification, survey, demarcation, and fixing of boundaries of the suit properties.
- 3 Whether the application for survey and demarcation is merited in the circumstances.
Ratio Decidendi
The court found that the dispute did not amount to a boundary dispute warranting a court-ordered survey and demarcation. The plaintiff had produced a valid title and search certificate for the suit land, and there was no evidence of a genuine boundary dispute. The court held that if the defendants required a surveyor's input, they could call one as an expert witness, but it would be unjust to order a survey of a registered owner's land without his consent or clear justification. The application was therefore dismissed as lacking merit, and costs were awarded to the plaintiff.
Court Disposition
application dismissed with costs to the plaintiff
Orders
- The application dated 21st October 2016 is dismissed with costs to the plaintiff.
- This order shall apply to Eldoret Environment and Land Court Case No. 298 of 2017.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT ELDORET
E&L CAUSE NO. 133 OF 2016
SHADRACK KIPSOIMO TRIPOP...............PLAINTIFF
VERSUS
PHILEMON MAGUT...........................1ST DEFENDANT
ELIUD MAGUT....................................2ND DEFENDANT
JULIUS MAGUT..................................3RD DEFENDANT
DAVID MAGUT....................................4TH DEFENDANT
RULING
This ruling is in respect of an application dated 21st October 2016 brought by way of Notice of Motion by the defendant/applicant for orders that:
1. Spent
2. The Honourable Court be pleased to order the identification, survey demarcation, fixing of boundaries of the suit properties NANDI/KAMOIYWO/520 and NANDI/KAMOYWO/805, the subject matters of these proceedings.
3. In the alternative the Honourable court be pleased to order the determination of the acreages of the suit properties NANDI/KAMOIYWO/520 and NANDI/KAMOYWO/805 with a view of ascertaining their common boundaries
4. That the costs of this application be provided for.
Parties filed their respective affidavits and urged the court to determine the application based on the affidavits on record. The defendant filed grounds in support of the application together with the supporting affidavit which he relied on. The plaintiff/ respondent also filed a replying affidavit in opposition to the application.
It was the defendant’s averment that there is a boundary dispute between the suit properties mentioned above and urged the court to order an identification, survey, demarcation and fixing of common boundaries. He stated that he is the administrator of the estate of his late father who owned parcel No. NANDI/KAMOIYWO/520 which has a boundary dispute with plot no. 805. He also averred that the survey and demarcation will resolve this dispute. He urged the court to allow the application as prayed.
In opposing the application the plaintiff filed a replying affidavit and stated that the application is frivolous as he is the registered proprietor of land parcel No NANDI/KAMOYWO/805 situated at Kamoywo location Nandi County whereby he annexed a copy of his said title. He also stated that there has never been any boundary dispute ever since he bought the suit land in 1965 when the survey was done.
The plaintiff also averred that he had bought additional 7 1/2 acres of land which was consolidated in 1965 and that the defendants encroached on his land in 2015. He therefore urged the court to dismiss the application as it has no merit.
Analysis and Determination
The issue for determination by the court is whether this is a boundary dispute which requires a survey and demarcation of the suit land. From the pleadings, it is clear that this is not a boundary dispute. The plaintiff has annexed a copy of a title to his suit land and a search certificate. The orders sought for are for a permanent injunction stopping the defendant from interfering with the suit land in any way.
If the defendants feel that they need the intervention of a surveyor, then they can call him/her as an expert witness in the matter. It would not be just to order for the survey of a registered owner’s land without his consent unless it is done by consent of all the parties. Furthermore the order of survey and demarcation would not determine this suit. The applicant has also not stated who will meet the costs of what is to be undertaken by the surveyor.
Having said that I do not find that this is a case where the court would grant orders of survey and demarcation. The application dated 21st October 2016 is hereby dismissed with costs to the plaintiff. This order shall apply to Eldoret Environment and land Court Case No. 298 of 2017.
Dated and delivered at Eldoret this 19th day of June 2018
M.A ODENY
JUDGE
Ruling read in open court in the presence of Mr. Chepkwony for Plaintiff/Respondents and in the absence of Mr. Choge for defendant/Applicant. Application dismissed.
Mr. Koech – Court Assistant.