Kitiyo & another v Mwoi & 2 others (Land Case 184 of 2016) [2020] KEELC 2145 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether an order for a Government Surveyor to visit the suit parcels and report was warranted at the interlocutory stage
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
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.
Legal principles established
#- 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
#- 1.The application dated 24/10/2019 is dismissed with no orders as to costs
- 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.Corresponding leave granted to the plaintiff to respond within 14 days of service
- 4.Mention before the Deputy Registrar on 9/6/2020 for fixing a hearing date for the main suit
- Jurisdiction invoked
- Sections 1A, 3, 3A and 63(e) of the Civil Procedure Act and Order 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.