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ELCPartially AllowedJudicial Review matter arising from Land Appeal No. 100 of 2008 (ruling of 15th February 2012)· [2019] KEELC 4981 (KLR)

Republic v District Surveyor Makueni District & another; Linus Kilonzo Ndivo (Interested Party) Ex-Parte Alice Mukulu Kyaa (suing as the legal administrator of the estate of the late Benjamin Kyaa Kioko) [2019] KEELC 4981 (KLR)

High Court of Kenya
28 January 2019
CMC.G. Mbogo
800 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court at Makueni found the District Surveyor had not strictly followed a 2012 court order on a land boundary and gave him one final 45-day chance to comply.

What this practically means

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Executive summary

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This ruling of the High Court at Makueni (Mbogo C.G., J.) concerns the implementation of an order of mandamus issued on 15th February 2012 directing the District Surveyor, Makueni, to strictly implement the minister's decision of 28th January 2009 in Land Appeal No. 100 of 2008 (Benjamin K. Kioko v Linus K. Ndivo) concerning plot number 254 Kivani adjudication section. Aggrieved by the Surveyor's implementation, the Ex-parte Applicant moved the court on 19th March 2013; the Surveyor reported that he had implemented the order, and parties were directed to file submissions. Only the Ex-parte Applicant filed submissions. Counsel argued that the Surveyor had strayed from the order by relying on sheet maps made long after the magistrate's sketch in Kilungu Civil Case No. L 38 of 1972, by dwelling on what he could not do, by referring to a curve on the boundary which was not part of the reference, and by failing to follow the magistrate's boundary description by measurements and physical features. The District also appeared and complained of ambiguity in the ruling for lack of a drawn map and reference points for the straight-line boundary. The court held that the Surveyor's objections amounted to appealing against the 2012 ruling in the wrong forum, that the ruling had not been appealed, and that no ambiguity existed in the ruling or the magistrate's judgment. Finding that court orders are never issued in vain, the court concluded the Surveyor had not strictly implemented the minister's decision and granted him a last chance of 45 days to implement the order and file a further report. No costs order was made.

Key legal issues

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01

Compliance with an order of mandamus requiring strict implementation of the minister's decision

Holding

The District Surveyor did not strictly implement the minister's decision, despite it having been found not difficult to comply with.

Reasoning

The court compared the Surveyor's report with the terms of the order. The Applicant's submissions showed the Surveyor relied on sheet maps made long after the magistrate's sketch, emphasized what he could not do, and introduced extraneous matters such as the curve on the boundary. The court found the report failed to satisfy the threshold of the order and gave a final 45-day window for compliance.

p. 2
02

Alleged ambiguity in the ruling of 15th February 2012 and the magistrate's judgment

Holding

No ambiguity exists in either the ruling or the magistrate's judgment of 1972/1978.

Reasoning

The Surveyor argued the ruling was ambiguous because it directed a straight-line boundary without reference points and without a drawn map. The court rejected this, holding the ruling was unambiguous, had never been appealed, and that the Surveyor's complaints were in substance an impermissible appeal against the ruling from the wrong forum.

p. 2

Legal principles established

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  • A party or officer dissatisfied with a court's implementation direction cannot raise objections amounting to an appeal in the same forum; an unappealed ruling binds and must be implemented strictly.
  • Court orders are never issued in vain and must be implemented as issued.

Court orders

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  1. 1.Finding that the first Plaintiff/Respondent has not strictly implemented the minister's decision of 28th January 2009 in Land Appeal No. 100 of 2008
  2. 2.The first Plaintiff/Respondent granted a last chance to implement the said order within 45 days from the date of the ruling
  3. 3.The first Plaintiff/Respondent to file a further report in court on the implementation

Authorities

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Cases cited (1)

  • Benjamin K. Kioko V Linus K. Ndivo, Land Appeal No. 100 of 2008
Jurisdiction invoked
Judicial review jurisdiction; order of mandamus issued by the court's ruling dated 15th February 2012

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, "Republic v District Surveyor Makueni District & another; Linus Kilonzo Ndivo (Interested Party) Ex-Parte Alice Mukulu Kyaa (suing as the legal administrator of the estate of the late Benjamin Kyaa Kioko) [2019] KEELC 4981 (KLR)", Case Analysis (2019). Judicial Review matter arising from Land Appeal No. 100 of 2008 (ruling of 15th February 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4981/eng@2019-01-28

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