Ali Farah (suing as the legal adm of the Estate of Farah Awad Gullet (Deceased) v Oloirien Group Ranch & another [2018] KEELC 1265 (KLR)

Environment and Land Court

17 October 2018

MKMohamed N. Kullow

753 words in judgment

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The bottom line

What this practically means

Executive summary

This was a ruling on the Defendant's Notice of Motion dated 30th May, 2018 in which the Defendant, Julius Ole Mokita, sought a stay of proceedings and a stay of implementation of an order made on 21st May, 2018, pending an intended appeal against that order. The order under challenge had directed the Trans Mara Sub-County Land Registrar and Surveyor to visit the suit land, LR Trans Mara/Olorien/1 and 9, and determine the boundary or extent of any encroachment. The Defendant had already obtained leave to appeal and filed a Notice of Appeal. He argued that implementation would render the appeal nugatory, that the Registrar and Surveyor were parties to the suit and their report would influence its outcome, and that the officers had 'sneaked' into another parcel and filed a fictitious report. The Plaintiff opposed, noting that the visitation application was made at the close of his evidence without opposition from the Defendant's counsel, and that any report could be varied if dissatisfying. Kullow J held that the only question was whether a stay pending appeal should issue. He found that although the Registrar and Surveyor had been sued, they had never filed pleadings or participated, and the Applicant's apprehension of a favourable, dubious report was speculative with no supporting evidence; once filed, the report could be tested, including by cross-examining both officers. The court dismissed the application with costs in the cause and directed the Registrar and Surveyor to visit the suit land and file a report within 30 days to determine the exact boundaries of Trans Mara/Oloirien/1 and 9.

Key legal issues

Whether a stay of proceedings and of implementation of a boundary-determination order should be granted pending an intended appeal

Holding

The application was dismissed; the Applicant failed to demonstrate merit in the stay sought and will have an opportunity to test the Registrar's and Surveyor's report through cross-examination.

Reasoning

The court found that although the Registrar and Surveyor were sued, they had never filed pleadings or participated in the hearing, undermining the Applicant's claim that their report would prejudice him. The apprehension that they would prepare a favourable report was speculative and unsupported by evidence. Under sections 18 and 19 of the Land Registration Act, boundary determination lies with the Registrar, and once the report is filed every party may test its veracity, including by cross-examining the Registrar and Surveyor.

p. 2

Legal principles established

Sections 18 and 19 of the Land Registration Act vest jurisdiction to demarcate, determine and fix boundaries in the Registrar, and a report ordered under those provisions can be tested on its veracity by the parties.
A party apprehending bias from a court-ordered report must place evidence before the court; mere speculation will not ground a stay.

Court orders

1.The Notice of Motion dated 30th May, 2018 is dismissed with costs in the cause
2.The Registrar and Surveyor to proceed and visit the suit land and file a report within 30 days to determine the exact boundaries of land parcel No. TRANS MARA/OLOIRIEN/1 and 9

Authorities

Legislation

Land Registration Actsections 18 and 19

Jurisdiction invoked: Not expressly stated; matter decided under the Land Registration Act No. 3 of 2012, sections 18 and 19

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Ali Farah (suing as the legal adm of the Estate of Farah Awad Gullet (Deceased) v Oloirien Group Ranch & another [2018] KEELC 1265 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1265/eng@2018-10-17

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