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ELCDismissedNot stated in judgment· [2019] KEELC 452 (KLR)

Catholic Diocese of Nakuru & 2 others v Rael Rono (Acting as legal representative of the Estate of Joseph Koech and Isaac Rono) & 2 others [2019] KEELC 452 (KLR)

Environment and Land Court
29 November 2019
1,989 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that landowners who participate in a survey through their lawyer cannot later undo it, though the report's flaws can still be challenged at trial.

What this practically means

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Executive summary

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The applicants, defendants in a land dispute with the Catholic Diocese of Nakuru, the Catholic Diocese of Kericho and Kemei Kipkurui over land parcels Kericho/Kipchimchim/1517, 1697 and 3412, moved the court by Notice of Motion dated 8th March 2019 under Sections 3A, 1A and 1B of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules. They sought expungement of a surveyor's report dated 4/5/2018, setting aside of the proceedings of 9th July 2018 adopting it, setting aside of orders of 24/10/2018 directing removal of structures, a court site visit, and that the matter proceed to hearing. They contended that the survey was not a boundary dispute exercise, that the surveyor acted alone without the Land Registrar, that they were mere spectators, and that the report extinguished parcel 1697. The respondents opposed, showing that both sides agreed to the re-survey, the applicants participated and signed off on the exercise, and their counsel declined to cross-examine the surveyor before the report was adopted. Justice Kaniaru traced the procedural history, holding that the applicants' former counsel was present throughout and that counsel's actions bind the client. The absence of the Land Registrar did not vitiate the survey since the surveyor is the expert who may be delegated to. The court found no unfairness, held the applicants were not condemned unheard as no trial has taken place, and declined a site visit for want of basis. However, the court noted facial deficiencies in the report and left open a supplemental survey at the hearing. The application was dismissed with costs on 29th November 2019.

Key legal issues

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01

Whether the applicants were condemned unheard in the survey exercise and adoption of the report

Holding

They were not: they and their counsel participated throughout, raised no objection to the survey or the report, and no trial has yet taken place

Reasoning

The court record shows the applicants were present at the survey and pointed out a common defined boundary point; their counsel was present when the surveyor interpreted his report and elected not to cross-examine him; the suit is still to be heard, so any complaints can be raised at the hearing. The belated about-turn came only after new counsel came on record.

p. 3
02

Whether the absence of the Land Registrar at the site visit vitiated the survey

Holding

It did not: the surveyor is the expert and the Land Registrar is the record keeper who may delegate to the surveyor, not vice versa

Reasoning

The court distinguished the situation where the Land Registrar visits without a surveyor (which would justify expungement) from a surveyor visiting without the Land Registrar, which the court held is unobjectionable because the surveyor carries the technical expertise and the Registrar may delegate to him.

p. 2
03

Whether the court should conduct its own site visit

Holding

The court cannot go alone as it lacks survey expertise and would need the very surveyor the applicants impugn; the prayer also lacked a sound basis

Reasoning

A court visiting the site on such an issue would need expert guidance from the surveyor whose work is challenged, rendering the exercise impractical. More fundamentally, the applicants failed to lay any sound basis for the prayers; their reasons were characterised as wishy-washy and nothing was done behind their backs.

p. 3
04

Whether the surveyor's report is final on the dispute

Holding

No; the report does not close the case - the applicants may demonstrate its deficiencies at the hearing, and a supplemental (not replacement) survey may be ordered if warranted

Reasoning

The court noted a facial deficiency in the report: it shows the size of parcel 1517 but neither the size nor location of the applicants' parcels. If the applicants prove inadequacy at the hearing, the court would permit another exercise, but only supplemental to the impugned one, preserving the progress of the case.

p. 3

Legal principles established

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  • Acts of a party's counsel in conducting a suit bind the client, and a successor counsel cannot lightly undo what former counsel did absent demonstrated fault or lack of instructions
  • A surveyor is the relevant expert in a boundary survey; the Land Registrar is the record keeper and may delegate to the surveyor, but not the other way round

Court orders

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  1. 1.The applicants' Notice of Motion dated 8th March 2019 is dismissed
  2. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Section 3A
  • Civil Procedure Act (Cap 21)Section 1A
  • Civil Procedure Act (Cap 21)Section 1B
  • Civil Procedure Rules, 2010Order 51 Rule 1
Jurisdiction invoked
Sections 3A, 1A and 1B of the Civil Procedure Act (Cap 21) and Order 51 Rule 1 of the Civil Procedure Rules, 2010

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, "Catholic Diocese of Nakuru & 2 others v Rael Rono (Acting as legal representative of the Estate of Joseph Koech and Isaac Rono) & 2 others [2019] KEELC 452 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/452/eng@2019-11-29

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