Kaboyi Merkor v County Land Adjudication & Settlement Officer, West Pokot County & 3 others [2019] KEELC 3540 (KLR)
The bottom line
#A Kenyan court allowed a land surveyor's site visit during a pending case, but made the applicant pay all the costs of the exercise.
What this practically means
#Executive summary
#Key legal issues
#Whether the court may order a site visit by a surveyor pending determination of the suit notwithstanding a subsisting status quo order
Yes; the status quo order does not bar a surveyor from verifying facts on the ground, and the application is not an appeal against or circumvention of the 15/11/2018 orders.
The court acknowledged that the surveyor's report would assist in determining the suit, but held it must also consider the interests of all parties and the terms on which to grant the orders. The 1st defendant alleged the application was meant to circumvent the status quo order of 15/11/2018, but the court held a surveyor's access to verify facts does not violate that order, and that the fact the orders favour the plaintiff's proof is not a ground to decline the application; instead, terms as to costs may be imposed.
Whether the fact that the orders sought predominantly aid the plaintiff's case is a ground for refusal
No; the court may grant such an application on terms, here special orders as to costs.
The court found that the verification of who resides on which parcel was in the interest of all parties, since parallel allegations existed about occupation of parcels 558 and 490 and a discrepancy between adjudication records and mapping of parcel 490. To balance any advantage to the plaintiff, the court conditioned the orders on the applicant bearing the costs of both the application and the surveyor's exercise.
Legal principles established
#- The court can order a surveyor to visit suit land in deserving cases, and the applicant must demonstrate that the order is deserved; even if orders predominantly aid the applicant's proof, the court may grant them on terms as to costs.
Court orders
#- 1.That the County Surveyor Trans-Nzoia County shall, in the presence of the local area Chief and Elders, visit land comprised in Title No. West Pokot/Chepareria/558 and 490 and ascertain (i) whether the plaintiff and defendant occupy parcel 558; (ii) whether there are physical marks/temporary boundaries separating them; (iii) how many acres each party occupies on parcel 558; (iv) whether the plaintiff or any family member occupies parcel 490 and how far parcel 558 is from 490; (v) whether the mapping of parcel 490 agrees with the adjudication records as to ground position
- 2.That the County Surveyor shall compile and file his report within 30 days from the date of the court's order
- 3.That the costs of the application and the costs of the exercise by the county surveyor shall be borne by the applicant
- Jurisdiction invoked
- Inherent powers of the High Court to order a surveyor to visit suit land in a pending suit (civil procedure practice); no specific constitutional/statutory provision invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kaboyi Merkor v County Land Adjudication & Settlement Officer, West Pokot County & 3 others [2019] KEELC 3540 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3540/eng@2019-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.