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ELCDismissedMisc. Application dated 19th February 2018 (relating to Misc. Case No. 20 of 2006)· [2018] KEELC 735 (KLR)

Stephen Kimeu Nguku v Kioko Maundu & 5 others [2018] KEELC 735 (KLR)

Environment and Land Court
16 November 2018
OAO.A. Angote
678 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a boundary restoration application because the landowner attacked the government surveyor instead of hiring a private surveyor to prove his case.

What this practically means

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Executive summary

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The Applicant sought an order compelling the County Surveyor Machakos and the Respondents (sons of Philip Maundu Kithome, the plaintiff in Miscellaneous Application No. 20 of 2006) to restore the boundaries on land known as Kalama/Katanga/629 in accordance with the judgment of 5th April 2006, and that the Respondents bear the costs. The dispute over the suit land dated back to 1972. The orders sought traced to the Minister's decision in Land Appeal No. 88 of 1982, which directed the District Surveyor, the Land Adjudication Officer and the chief to visit the disputed land and fix the boundaries on the ground to correspond with the boundary on the map, with the Appellants meeting the expenses. That decision flowed from the Land Adjudication Officer's decision of 5th November 1976 agreeing with the boundary as drawn by the clan. The Respondents opposed the application through Grounds of Opposition, arguing it was res judicata, having been dealt with by Odunga J. on 10th December 2012; that the court lacked jurisdiction over boundary disputes; and that they were not personal representatives of the estate. The court noted correspondence showing the County Surveyor had arranged to visit the land in September 2016 to pick the boundary, and that the Applicant was dissatisfied with the outcome, alleging the surveyor had developed personal interest in the land. Angote J. held that the Applicant, having cast aspersions on the County Surveyor but never engaged a private surveyor to produce a plan depicting the correct boundaries, did not deserve the orders sought. Neither party filed submissions. The application was dismissed with no order as to costs.

Key legal issues

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01

Enforcement of the Minister's decision in Land Appeal No. 88 of 1982 requiring surveyors and the chief to fix boundaries

Holding

The Application for enforcement was refused because the Applicant failed to demonstrate entitlement to the orders sought

Reasoning

The court traced the dispute to the 1976 Land Adjudication Officer's decision and the Minister's 1982 directions that the District Surveyor, LAO and chief fix the boundaries on the ground. The County Surveyor had, by letters of 2016, arranged to visit the land and picked a boundary, but the Applicant was dissatisfied. Rather than prove the boundary was wrongly fixed, the Applicant merely attacked the surveyor's professionalism without producing contrary evidence from a private surveyor. The court concluded the Applicant had not established a basis for the coercive orders sought.

p. 2
02

Applicant's conduct and evidential burden

Holding

A litigant alleging an incorrect boundary fixation must produce independent survey evidence

Reasoning

The court observed that the Applicant's letter of 26th October 2016 alleged the County Surveyor 'developed personal interest' in the land and picked his own boundary inside Plot No. 629. The court held that such allegations, without more, were insufficient. The proper course was for the Applicant to hire a private surveyor to produce a survey plan depicting what he contended were the correct boundaries, rather than lamenting about the character of the County Surveyor. Absent such evidence, the application could not succeed.

p. 2

Legal principles established

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  • A party dissatisfied with a court-directed survey should obtain an independent private surveyor's plan rather than merely impugning the official surveyor's integrity

Court orders

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  1. 1.The Application dated 19th February 2018 is dismissed with no order as to costs
Jurisdiction invoked
Enforcement of orders in Miscellaneous Application No. 20 of 2006 arising from Land Appeal No. 88 of 1982 (Minister's decision); court found it lacked jurisdiction over the boundary dispute itself

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, "Stephen Kimeu Nguku v Kioko Maundu & 5 others [2018] KEELC 735 (KLR)", Case Analysis (2018). Misc. Application dated 19th February 2018 (relating to Misc. Case No. 20 of 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/735/eng@2018-11-16

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