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ELCDismissedNot stated in judgment· [2019] KEELC 5083 (KLR)

Florence Auma Wekesa v Patrick Omondi Keya & 6 others [2019] KEELC 5083 (KLR)

Environment and Land Court
10 September 2019
AKA. K. Kaniaru
801 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused an early survey order in a disputed land case, ruling surveys are final relief that requires evidence first.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Busia on a Notice of Motion dated 15/10/2018 by Florence Auma Wekesa, plaintiff and administrator of the estate of the late Situndo Otsieno, registered owner of LR. No. MARACHI/ELUKONGO/1293. She sought orders that the County Surveyor and Land Registrar, Busia visit the parcel, identify the boundary and file a report within 30 days, with police assistance, alleging that the respondents had unlawfully invaded the land and interfered with boundaries. The 5th and 7th respondents filed grounds of opposition, contending that the boundary issue should first be resolved by the relevant office and that the applicant was fishing for evidence. Only the applicant and 5th respondent filed submissions. The court observed that the plaint itself already contains a prayer for a survey, which is final in nature and requires evidence before it can be granted, and questioned the applicant's apparent confusion between the two survey requests. With the respondents denying trespass and some claiming ownership of parts of the land, the court held that delving into a survey without taking evidence or hearing the whole suit would be completely unhelpful. The application was found to be without merit and dismissed with no order as to costs on 10 September 2019.

Key legal issues

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Whether an order for boundary identification/survey could be granted at the interlocutory stage

Holding

The application was dismissed; a survey is in the nature of a final order requiring evidence, and with parties claiming ownership it was premature and unhelpful to order a survey

Reasoning

The court noted that the plaint already contains a prayer for survey which is final in nature and requires evidence before determination. Various respondents claim ownership of parts of the parcel and deny trespass, so a boundary determination now would serve no purpose. The court also questioned the duplication between the application and the plaint prayer. It therefore found the application devoid of merit and dismissed it without costs.

p. 2

Legal principles established

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  • A survey order akin to final relief should not be granted at interlocutory stage where ownership of the land is disputed; evidence must be taken first

Court orders

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  1. 1.The Notice of Motion dated 15/10/2018 is dismissed with no order as to costs

Authorities

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Legislation

  • Civil Procedure Act (referred to as 'Civil Procedure Rules' in the application)Sections 3, 3A and 63(c)
  • Constitution of KenyaNot specified
Jurisdiction invoked
Sections 3, 3A and 63(c) of the Civil Procedure Act and/or any other provision of the law and the Constitution of Kenya (as cited in the application)

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, "Florence Auma Wekesa v Patrick Omondi Keya & 6 others [2019] KEELC 5083 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5083/eng@2019-09-10

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