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ELCPartially AllowedNot stated in the judgment· [2015] KEELC 145 (KLR)

Jemima Wanjiru Kaboro (Suing as Administrator of the estate of Samuel Kaboro) v Eva Kamau [2015] KEELC 145 (KLR)

Environment and Land Court (court not expressly named; a judge of the High Court/ELC dealing with a land dispute)
5 June 2015
395 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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In a dispute over two claims to the same plot in Embakasi Ranching, a Kenyan court ordered a government surveyor, not a private one, to establish the plot's true location.

What this practically means

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Executive summary

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This is an interlocutory ruling by L. Gacheru J delivered on 5th June 2015 in a land dispute between two parties claiming plots within Embakasi Ranching Company Limited. The Plaintiff claimed allocation of Plot No. 255 while the Defendant claimed to have purchased Plot No. F315 and constructed a permanent house on it; both claims concerned different plot numbers situated on the same physical location. By an application dated 12th August 2013, the Plaintiff sought orders compelling Embakasi Ranching Company Limited and its appointed surveyors to file a report with the court on the physical locations of Plots P.255 and P.315, and specifically the plot occupied by the Defendant. The application was grounded on the position that the dispute concerned the actual physical location of the two plots, which could only be resolved by technical survey evidence with the assistance of the company as custodian of maps, survey plans and plot particulars; once location was resolved, the suit would be automatically determined. The Defendant did not oppose the application but asked that a Government Surveyor undertake the exercise instead of a private surveyor. The court found the application merited and ordered a surveyor from the Department of Surveys of Kenya, in conjunction with Embakasi Ranching Company Limited, to survey the physical locations of the plots and file a report within 60 days. Both parties were to meet the surveyor's fees equally and costs of the application were to be in the cause. The matter was set for mention on 5th August 2015 to confirm filing of the report.

Key legal issues

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01

Necessity of surveyor's technical evidence in boundary/location disputes

Holding

The application for a survey was merited because the dispute could only be resolved by technical survey evidence

Reasoning

The court found that the parties claimed different plot numbers situated on the same physical location, a factual question that could not be resolved on pleadings alone. The custodian of the maps and plot particulars was Embakasi Ranching Company Limited, so its input alongside an official surveyor was necessary. Once location is resolved, the suit would largely determine itself.

p. 1
02

Identity of the surveyor - Government versus private

Holding

A Government Surveyor from the Department of Surveys was to conduct the survey, in conjunction with Embakasi Ranching Company Limited

Reasoning

The Defendant did not oppose the application but asked that a Government Surveyor carry out the exercise instead of a private surveyor. The court adopted that position when allowing the application, evidently preferring the impartiality of the Department of Surveys.

p. 1

Legal principles established

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  • Where a land dispute turns on the physical location of plots, the court may order a survey by the Department of Surveys assisted by the custodian company to resolve it

Court orders

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  1. 1.A Surveyor from the Department of Surveys of Kenya, in conjunction with Embakasi Ranching Company Limited, to undertake a survey exercise to establish the physical locations of the plots in issue, with a report to be filed within 60 days
  2. 2.Both parties to meet the Surveyor's fees equally
  3. 3.Costs of the application to be in the cause
  4. 4.Matter to be mentioned on 5th August 2015 to confirm filing of the Surveyor's Report; mention notice to issue
  5. 5.Since there is no Return of Service for Mr Njuguna for the Plaintiff, Mr Ndegwa to serve Mr Njuguna with a Notice of Ruling
Jurisdiction invoked
Original civil jurisdiction over a dispute concerning the physical location of land plots (statutory basis not expressly invoked in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jemima Wanjiru Kaboro (Suing as Administrator of the estate of Samuel Kaboro) v Eva Kamau [2015] KEELC 145 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/145/eng@2015-06-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.