Cosmas N.E. Kathungu v Njue Kiarie & another [2017] KEELC 289 (KLR)
The bottom line
#Kenya's Environment and Land Court ordered an official survey to settle an Embu boundary dispute, ruling that a finished building does not block encroachment investigations.
What this practically means
#Executive summary
#Key legal issues
#Whether a court-ordered survey is warranted in a part-heard suit where the parties have filed survey records
Yes; the court may order government survey officers to file an independent report because it may assist in resolving issues in controversy.
Although the suit was part-heard and various documents, reports and survey plans had been filed, the Plaintiff had not closed his case. The court reasoned that an additional report from relevant government officers would cause no harm, could assist in resolving the controversy, and its outcome was unknown - it could favour either side. The existence of prior filed material did not render the application misconceived.
Whether the Defendants' completion of construction and letting of the building rendered the survey application unnecessary
No; completion of the building has no bearing on the application since the suit and all contested issues remain undetermined.
The Defendants argued that their construction was complete and tenanted, making the survey futile. The court held that the Plaintiff's suit was still alive and all issues were yet to be determined, so the state of the building project was irrelevant to whether the survey should issue. The application was therefore allowed in full in terms of prayers (a), (b) and (c).
Whether ordering the survey after the Plaintiff had testified amounted to improper fishing for additional evidence
No; the court treated the report as potentially assisting the court rather than as partisan evidence-gathering by a plaintiff who knew his case's weaknesses.
The Defendants submitted that the Plaintiff, having testified, was fishing for evidence to shore up a weak case. The court noted the Plaintiff had not closed his case, had not been cross-examined and could still call witnesses, and that the report's outcome could not be predicted. It therefore declined to treat the application as an improper fishing expedition.
Legal principles established
#- A court may, in a pending part-heard suit, order an official survey report to assist in resolving boundary disputes even where the parties have filed their own survey documents
- Completion of a defendant's construction does not defeat an application seeking survey to determine encroachment while the suit remains alive
Court orders
#- 1.The Plaintiff's notice of motion dated 11th April 2017 is allowed in terms of prayers (a), (b) and (c) thereof
- 2.The District Land Registrar Embu, District Land Surveyor Embu and County Government of Embu Land Surveyor to carry out the survey to determine the existence, boundaries and extent of plots Embu/Municipality/1112/1503 and Embu/Municipality/1112/81, on which plot the Morning Glory Plaza building stands, and whether there is any encroachment
- 3.The survey report, complete with sketches, drawings, dimensions and measurements, to be filed in court within 60 days from the date of the order
- 4.The Plaintiff and the Defendants at liberty to have their own land surveyors during the exercise
- 5.Any applicable statutory fees or charges in respect of the exercise to be borne by the Plaintiff
- 6.A mention date to fix a ruling/directions date for confirmation of compliance and hearing directions
- Jurisdiction invoked
- Articles 150(1), 159(1), 159(2)(b) and (d) of the Constitution; section 3A of the Civil Procedure Act; Order 11 and Order 51 rule 2 of the Civil Procedure Rules; section 17 of the Land Registration Act 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cosmas N.E. Kathungu v Njue Kiarie & another [2017] KEELC 289 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/289/eng@2017-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.