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ELCDismissedNot stated in judgment· [2019] KEELC 2792 (KLR)

Julius Musembi Mativo v Amos Mutinda Kalungu & 4 others [2019] KEELC 2792 (KLR)

Environment and Land Court
21 June 2019
OAO.A. Angote
619 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to fix disputed land boundary beacons mid-case, ruling parties must gather independent surveyor evidence for trial instead.

What this practically means

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Executive summary

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The Defendants brought a Notice of Motion dated 30th July 2018 seeking orders that the District Land Registrar visit parcel No. Matungulu/Kyaume/2425 and L.R. No. 23302 at Tala Market in Machakos County, and that the District Surveyor fix beacons to mark the boundary between the two parcels. The application, supported by the affidavit of the 2nd Defendant, contended that the Plaintiff's claim was for encroachment and that beacons needed to be established to define the correct boundary. The Plaintiff opposed through Grounds of Opposition, averring that the District Surveyor had already visited the parcels on 29th September 2018 and established beacons, and had prepared a report on the encroachments, so the application merely sought to re-do what had already been done. The court, per O.A. Angote J, held that the position of the beacons was the very issue for determination at trial. It would be improper for the court, as an impartial arbiter, to order surveyors at an interlocutory stage to fix beacons that are in contention, since such an order would presuppose that the court had already decided where the boundary lies. Each party was at liberty to obtain a report from an independent surveyor for production at the hearing, and only after evidence was taken could a final order on the position of the boundaries be made. The application was found unmeritorious and dismissed with costs.

Key legal issues

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01

Whether an interlocutory application for fixing of beacons is competent where the boundary position is the subject matter of the suit

Holding

The application is unmeritorious because fixing beacons at the interlocutory stage would presuppose the court has already determined the boundary, which it has not.

Reasoning

The court held that the very location of the beacons is the dispute before it. Directing a surveyor to fix beacons would compromise the court's impartiality by effectively determining the boundary issue in advance. The proper course is for each party to obtain an independent surveyor's report and tender it as evidence at trial; a final order on boundaries can follow only after evidence is taken.

p. 2

Legal principles established

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  • A court should not, at an interlocutory stage, direct surveyors to fix beacons whose position is in contention; each party is at liberty to obtain an independent surveyor's report and the court can only make a final order on boundaries after taking evidence.

Court orders

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  1. 1.The Notice of Motion dated 30th July 2018 is dismissed
  2. 2.Costs of the Application awarded to the Plaintiff
Jurisdiction invoked
Not expressly stated; original civil jurisdiction over land disputes

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, "Julius Musembi Mativo v Amos Mutinda Kalungu & 4 others [2019] KEELC 2792 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2792/eng@2019-06-21

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