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ELCDismissedNot stated in judgment· [2019] KEELC 3265 (KLR)

Eliud Njuguna Mwangi & another v Kimorok Farm Limited [2019] KEELC 3265 (KLR)

Environment and Land Court
7 May 2019
MOM.A ODENY
719 words in judgment
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The bottom line

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The court settled a land dispute by trusting the County Surveyor's report, leaving the defendant with 5.5 acres as originally decreed.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (M.A Odeny, J) determined a notice of motion dated 18th July 2018 by the plaintiff/applicants. The suit had been finalized by judgment on 15th October 2014, which decreed that the defendant is entitled to 5.5 acres of land parcel No. KARUNA/SOSIANI BLOCK 2 (PROGRESSIVE/289). What remained was implementation, but two survey reports with discrepant sketch maps were on the court file. The applicants sought a stay of the orders of 12th July 2018, setting aside or review of those orders, adoption of an earlier survey report dated 22nd February 2016 or, alternatively, an independent survey, and full implementation of the 2014 judgment limiting the defendant to 5.5 acres. The court summoned the County Surveyor, Mr. Keitany, who explained that the earlier reports enclosed wrong sketch maps while the body of the reports was accurate; that the sketch plan dated 31st July 2017 conforms to the mutation form of parcel number 326 measuring 2.4 ha (equivalent to 6 acres); and that by the time that sketch plan was prepared, beacons had been placed and 5.5 acres excised with all parties present during demarcation. He opined that the 31st July 2017 report should be adopted, leaving the defendant with 5.5 acres. Accepting this expert evidence, the court dismissed the application's challenges and ordered that the report dated 31st July 2017 be adopted for implementation of the judgment dated 15th October 2014, with costs in the cause. The ruling was delivered at Eldoret on 7th May 2019.

Key legal issues

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01

Which survey report should be adopted to implement the judgment of 15th October 2014

Holding

The report dated 31st July 2017 was adopted, as it conforms to the mutation form and leaves the defendant with 5.5 acres as decreed

Reasoning

The matter had been finalized by judgment on 15th October 2014 entitling the defendant to 5.5 acres; only implementation remained. Two survey reports with discrepant sketch maps were on file, prompting the court to summon the County Surveyor. Mr. Keitany explained that the earlier reports enclosed wrong sketch maps, that the sketch plan dated 31st July 2017 conforms to the mutation form, and that beacons had been placed excising 5.5 acres with all parties present during demarcation. The court adopted his expert opinion.

p. 2

Legal principles established

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  • Where competing survey reports create discrepancies in implementation of a judgment, the court may adopt the expert advice of the County Surveyor on which report to adopt

Court orders

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  1. 1.The report dated 31st July 2017 is adopted for implementation of the judgment dated 15th October 2014
  2. 2.Costs in the cause
Jurisdiction invoked
Original jurisdiction over implementation of judgment in land suit (statutory basis not stated in judgment)

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, "Eliud Njuguna Mwangi & another v Kimorok Farm Limited [2019] KEELC 3265 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3265/eng@2019-05-07

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