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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicants were condemned unheard in the survey exercise and adoption of the report
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
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.
Whether the absence of the Land Registrar at the site visit vitiated the survey
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
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.
Whether the court should conduct its own site visit
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
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.
Whether the surveyor's report is final on the dispute
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
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.
Legal principles established
#- 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
#- 1.The applicants' Notice of Motion dated 8th March 2019 is dismissed
- 2.Costs of the application to the respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.