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ELCDismissedLand Case 184 of 2016· [2020] KEELC 2145 (KLR)

Kitiyo & another v Mwoi & 2 others (Land Case 184 of 2016) [2020] KEELC 2145 (KLR)

Environment and Land Court
30 April 2020
707 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused an early survey order, ruling parties must first present their evidence before a site visit can be ordered.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court on the 1st plaintiff's application dated 24/10/2019, brought under Sections 1A, 3, 3A and 63(e) of the Civil Procedure Act and Order 1 of the Civil Procedure Rules. The plaintiffs sought orders that a Government Surveyor visit parcels Kitale Municipality Block 3/973 and 3/974 and file a report on the position on the ground, with security provided by the OCS Kitale Police Station. The plaintiffs contended the two parcels were mutated from mother title Kitale Municipality Block 3/474, that the 1st plaintiff had built a school on parcel 973 in 2006 and the 2nd plaintiff a church on parcel 974. The 1st defendant opposed, asserting on the basis of a conversion table that the plaintiffs' titles were not genuine and that the suit concerned genuineness of titles, so a survey would prejudice the parties. The 3rd defendant's deponent stated the dispute was about ownership rather than boundaries, resolvable only by viva voce evidence and documents, and that the Registry Index Map placed plots 973 and 974 far from the plaintiffs' occupation. Mwangi Njoroge J held that the issues would only crystallize once evidence was taken, found the application premature, and dismissed it with no orders as to costs, reserving liberty to raise the survey question orally after the parties' evidence. The court then granted the 1st defendant leave to file further documents within 21 days, with corresponding leave to the plaintiff to respond within 14 days, and fixed mention before the Deputy Registrar on 9/6/2020.

Key legal issues

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Whether an order for a Government Surveyor to visit the suit parcels and report was warranted at the interlocutory stage

Holding

The application was dismissed as premature; evidence should first be taken and the necessity of a site visit can be determined afterwards, even on oral application

Reasoning

The plaintiffs sought a survey of parcels 973 and 974, contending they were mutated from mother title Block 3/474, on which they had built a school and a church. The defendants opposed, arguing the dispute concerned ownership and genuineness of titles, not boundaries, and that the plots per the Registry Index Map were far from the plaintiffs' occupation. The court held the issues would only crystallize once evidence was taken, that good grounds had not been established, and that the parties should first call their respective evidence before any survey direction.

p. 2

Legal principles established

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  • An application for a surveyor's site visit is premature where the issues in the suit have not yet crystallized through evidence, and parties should first call their evidence; the court may thereafter determine, even on oral application, whether a surveyor's visit is necessary

Court orders

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  1. 1.The application dated 24/10/2019 is dismissed with no orders as to costs
  2. 2.Leave granted to the 1st defendant to file and serve further documents and a list of documents, and if necessary further statements, within 21 days
  3. 3.Corresponding leave granted to the plaintiff to respond within 14 days of service
  4. 4.Mention before the Deputy Registrar on 9/6/2020 for fixing a hearing date for the main suit

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 3
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Civil Procedure RulesOrder 1
Jurisdiction invoked
Sections 1A, 3, 3A and 63(e) of the Civil Procedure Act and Order 1 of the Civil Procedure Rules

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, "Kitiyo & another v Mwoi & 2 others (Land Case 184 of 2016) [2020] KEELC 2145 (KLR)", Case Analysis (2020). Land Case 184 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2145/eng@2020-04-30

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