https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4900

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC CASE NO. E081 OF 2024** **TOPEES HOUSING CO-OPERATIVE SOCIETY LTD::::::::::APPLICANT** **VERSUS** **DAVID MWONGELA::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT** **RULING** The application is dated 9th July 2026 and is brought under order 40 rules 1, 2 and 3 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeking the following orders; 1. That this application be certified as urgent, service be dispensed with in the first instance and the application be heard on a priority basis. 2. That this Honourable Court be pleased to direct the Director of Survey, State Department for Lands and Physical Planning Ruaraka off Thika road, Nairobi to visit the suit lands being LR NO. 28614, LR NO, 28615 & LR NO. 21119 in the presence of the Applicant/ Plaintiff and Respondent/Defendant or their appointed representatives to point out the ground beacons and co-ordinates as per their respective deed plans and furnish this Honourable Court with a comprehensive report detailing whether the Defendant has encroached upon LR NO. 28614 & LR NO. 28615 within receipt of the order. 3. That the Honourable Court be pleased to direct the OCS Mlolongo Police Station to provide adequate security during the undertaking of the survey exercise. 4. That costs of this application be borne by the Applicant. The application is supported by the annexed affidavit of Patrick Kyalo and grounds that the Applicant is the lawful and registered owner of the lands known as LR NO. 28614 & LR NO. 28615 both situated in Syokimau/ Mulolongo ward in Mavoko Municipality. That the Applicant has indeed been in occupation of the said land since it purchased the same on or about 23rd July 2014 from its previous owner Gabbie Holdings Limited who in turn had purchased the same from its owner Kathuku Musau Damnas. That indeed the Applicant herein had the said lands transferred to it on 21st November 2014 and proceeded to commission the construction of a perimeter wall around the entirety of its property. That at the time of purchase, there was an existing 20 meter public road at the lower part of the LR 28614 and LR 28615 which the recent government survey report pointed out that it has been encroached by the Respondent’s construction and which the Respondent has recently blocked permanently. That this is despite the Respondent not having provided any search as proof of ownership from the Registrar of Lands for the parcel LR. 21119 and no government survey report pointing out the coordinates of his beacons for verification and if there is any boundary encroachment to land parcels LR 28614 and LR. 28615. That on or about the month of August 2016 the Respondent herein repeatedly and without any regards to the Applicant’s right as a registered land owner have encroached upon land parcels and proceeded to start excavations for construction in the dead of night and demolished the aforementioned perimeter wall carting away all the material and gate. The matter was reported to the police and the Respondent was arrested. That most recently the Respondent has indeed descended upon said land and commenced aggressive construction upon said lands thus necessitating the application dated 24th September 2024 to which the honorable Court issued an order of status quo. The Respondent submitted that he had no objection to the resurveying and confirmation of the 20 meter public road which lies between LR No. 2864, LR No. 2865 and LR No. 21119 but the court should note that the survey has been done thrice earlier by the Director of Surveys State Department for Lands and Physical Planning. This court has considered the application and the submissions therein. The Applicants state that as such it is important for the ultimate determination of the suit that an impartial Chief Government Surveyor does carry out a survey of the lands to point out the ground beacons and co-ordinates as per their respective deed plans and supply the Honourable Court with as surveyor's report to ultimately shed light on the boundaries of the suit lands and assist in the determination of the suit at hand. That unless the application herein is heard and the prayers allowed commissioning the said surveyor's report the determination of the suit at hand shall be hamstrung and may take longer than necessary wasting judiciary resources and inconveniencing all parties involved. The provisions of *Article 159(2)(a)(b)(c)* and *(d)* of the *Constitution of Kenya* as read with *Sections 1A* and *1B* of the *Civil Procedure Act, Cap 21* enjoin this court to foster and facilitate the overriding objective of the Act to render justice to parties in all Civil Proceedings in a just, expeditious, proportionate and affordable cost to parties. I find that it would be necessary to have a survey done by the responsible authority and in the presence of both parties. I find this application is merited and I grant it as prayed. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 29TH DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**