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ELCPartially AllowedLand Case No. 56 of 2015· [2016] KEELC 1030 (KLR)

Charles Samson Nyaindi Atina v Benjamin Kechui [2016] KEELC 1030 (KLR)

Environment and Land Court
9 March 2016
649 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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When rival land surveys contradict each other, only an official County Surveyor's survey can conclusively settle how much land you actually occupy.

What this practically means

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Executive summary

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The plaintiff sued the registered owner of LR No. Sinyerere/Sitatunga/Makunga/238 (25 acres), alleging he purchased 2.5 acres under a sale agreement dated 2/5/2003, took possession, and had remained in occupation. In or around 2014 the defendant began claiming the plaintiff occupied more land than purchased, prompting a series of surveys between December 2014 and May 2015 by private and Government surveyors, each producing varying acreages (1.6 to 2.6 acres) depending on which party engaged them. The defendant was duly served but neither entered appearance nor filed a defence, so the suit proceeded by formal proof before E. Obaga J. The plaintiff produced the sale agreement (Exhibit 2) and a schedule of the surveys (Exhibit 3). The court held that it was not in contention that the plaintiff bought 2.5 acres, found something seriously wrong in the manner the surveys were carried out, and held that only a Government surveyor - specifically the County Surveyor - could conclusively settle the dispute. The court found the plaintiff had established his case and ordered the County Surveyor to proceed to the land and ascertain the acreage occupied by the plaintiff; if the plaintiff occupied less than 2.5 acres, the defendant was to make good the shortfall in land or compensate him monetarily. Costs of the survey were to be borne by the plaintiff, and no order was made as to costs of the suit given the peculiar circumstances. Judgment was delivered at Kitale on 9 March 2016 in the absence of the plaintiff and his advocate.

Key legal issues

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01

Whether the plaintiff proved his claim on a formal proof hearing

Holding

The plaintiff established his case that he bought 2.5 acres and is in occupation, entitling him to an order for an official survey

Reasoning

The defendant, though duly served, neither entered appearance nor filed a defence, so the suit proceeded by formal proof. The plaintiff produced the sale agreement dated 2/5/2003 as Exhibit 2 and testified that he took possession and remained in occupation. The court accepted that the purchase of 2.5 acres was not in contention and found the plaintiff had established his case, ordering the County Surveyor to ascertain the acreage occupied.

p. 1
02

Weight to be attached to conflicting private survey reports

Holding

The court found the varying survey results partisan and unreliable, warranting an official survey

Reasoning

Multiple surveyors called between December 2014 and May 2015 produced varying acreages ranging from 1.6 to 2.6 acres, with results correlating to which party engaged the surveyor. The court found something seriously wrong with the manner the surveys were carried out and concluded that only a Government/County Surveyor's survey could conclusively settle the issue.

p. 1

Legal principles established

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  • Where multiple private surveys produce conflicting acreages, an official survey by the County Surveyor is required to conclusively settle the boundary/acreage dispute

Court orders

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  1. 1.That the County Surveyor do proceed to LR No. Sinyerere/Sitatunga/Makunga 238 and ascertain the acreage occupied by the plaintiff
  2. 2.That should the plaintiff be occupying less than 2.5 acres, the shortfall be given to him by the defendant or alternatively the defendant compensate the plaintiff monetarily for the shortfall
  3. 3.That the costs of the survey be borne by the plaintiff
  4. 4.No order as to costs of the suit given the peculiar circumstances of the case
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land dispute; not expressly cited in 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, "Charles Samson Nyaindi Atina v Benjamin Kechui [2016] KEELC 1030 (KLR)", Case Analysis (2016). Land Case No. 56 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1030/eng@2016-03-09

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