Caroline Wanyua Mwendwa & another v China Road and Bridge Corporation (K) [2020] KEELC 2235 (KLR)
The bottom line
#A Kenyan land court cancelled a consented survey order because one party couldn't show ownership rights, reminding everyone: only dispute boundaries if you actually own the land.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent orders of 18th December, 2019 should be extended (Defendant's application)
Dismissed; the Defendant failed to show why the survey could not proceed and lacks locus standi on any boundary dispute
The court found the orders of 18th December, 2019 were capable of compliance since the County Surveyor and Land Registrar were to be present, and the Defendant could have voiced its reservations about the Plaintiffs' surveyor yet allowed the exercise to proceed. The court accepted the Plaintiffs' uncontroverted deposition that their claim is in trespass, not a boundary dispute, so the Defendant had no locus standi to raise boundary issues and extension would only convolute the matters in dispute.
Whether the consent orders of 18th December, 2019 should be set aside (Plaintiffs' application)
Granted; the consent was entered under a mistaken belief about the purpose of the survey, uncontroverted by the Defendant
The Plaintiffs deponed that they consented believing the survey was to ascertain encroachment into their land, but during the site visit realised the Defendant sought to determine other issues including the volume of soil excavated. The court noted that the Defendant did not controvert these depositions, instead dwelling on the Plaintiffs' use of an unlicensed surveyor. On that uncontroverted evidence of mistake, the court found the Plaintiffs' application meritorious and set the orders aside, granting prayer 1.
Whether the Defendant has locus standi to raise a boundary dispute
No; the Defendant has no ownership rights over the parcels and the suit is founded in trespass
Relying on the Plaintiffs' submissions (citing Alfred Njau & 5 others v City Council of Nairobi on the meaning of locus standi), the court accepted that the Plaintiffs' claim comprises trespass, illegal excavation of soil, compensation and special damages, and that the Plaintiffs have no boundary dispute with neighbours. Since the Defendant claims no ownership rights over the parcels in question, it cannot purport to raise the issue of a boundary dispute to justify a fresh survey.
Legal principles established
#- A party without ownership rights over the parcels in dispute has no locus standi to raise a boundary dispute
- Where a party has reservations about the other side's expert, it should express them and allow the court-ordered exercise to proceed rather than frustrate it
Court orders
#- 1.The Defendant's application dated 27th April, 2020 is dismissed with costs to the Plaintiffs
- 2.Prayer 1 of the Plaintiffs' application dated 29th April, 2020 is granted, setting aside the orders made on 18th December, 2019
- 3.The Plaintiffs/Applicants shall have the costs of their application
- Jurisdiction invoked
- Orders 50 Rule 1 and 51 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act Cap 21 (inherent jurisdiction); the judgment does not cite a constitutional provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Caroline Wanyua Mwendwa & another v China Road and Bridge Corporation (K) [2020] KEELC 2235 (KLR)", Case Analysis (2020). Not stated in the judgment (Makueni ELC suit concerning suit property within mother title LR No.973/1, Emali). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2235/eng@2020-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.