Adam Ambani Mulunda v Richard Mapesa Matuli [2020] KEELC 3518 (KLR)

High Court of Kenya

18 February 2020

NMN.A. Matheka

1,551 words in judgment

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The bottom line

What this practically means

Executive summary

This first-instance ruling of the High Court at Kakamega (N.A. Matheka J) determined two competing applications arising from a land dispute over L.R. No. S. Wanga/Musanda/953. The plaintiff had obtained judgment awarding him 6.8 hectares of the suit parcel, with the remainder to be registered in the defendant's name. By a ruling of 28th January 2015 the judgment was stayed and a survey ordered; a District Surveyor, Nicholas Shinguri, prepared a report dated 22nd May 2018 establishing that the plaintiff and his family occupied 6.60 hectares. The defendant's application dated 22nd August 2019 sought to re-open the suit closed on 17th July 2019, to stay execution of the survey report, and to obtain a fresh survey by a neutral surveyor, alleging bias in the survey process and breach of natural justice. The plaintiff's application dated 9th September 2019 sought authorization for the Deputy Registrar to execute transfer instruments so the plaintiff could be registered as absolute proprietor of 6.8 Ha, and an order of eviction against the defendant. The court held that the survey had been conducted pursuant to its orders and in the defendant's presence, that the defendant's application was filed over a year late without explanation, and that litigation must come to an end, with appeal being the defendant's proper avenue. The defendant's application was dismissed in its entirety. The plaintiff's application was allowed: the Deputy Registrar was authorized to execute transfer instruments to register the plaintiff as absolute proprietor of approximately 6.6 Ha, with an eviction order to issue against the defendant after registration. Each party was ordered to bear its own costs.

Key legal issues

Whether a party dissatisfied with a court-ordered survey report may obtain a fresh survey

Holding

No; the proper remedy is an appeal, and a fresh survey will not be ordered absent merit

Reasoning

The court found the survey was conducted pursuant to its orders of 28th January 2015 and 21st November 2017, in the presence of the defendant, by the District Surveyor. The defendant waited over a year to challenge it and gave no cause for the delay. The court invoked the principle that litigation must come to an end and dismissed the application.

p. 2

Whether the plaintiff was entitled to execution of transfer instruments and eviction

Holding

Yes; the court-adopted survey established the plaintiff and his family occupy 6.60 hectares, and the defendant was to be evicted after registration

Reasoning

The court perused the survey report by Nicholas Shinguri, District Surveyor, which recorded that the area occupied by the plaintiff and his family yielded 6.60 hectares. Since the exercise had been undertaken pursuant to a court order, the court saw no reason to repeat it and granted the plaintiff's application, with an eviction order to issue after registration.

p. 2

Legal principles established

Litigation must come to an end; a party aggrieved by an interlocutory order or survey report should appeal rather than seek fresh reports

Court orders

1.Dismissal of the defendant's application dated 22nd August 2019 seeking to re-open the suit, stay execution of the survey report and a fresh survey
2.Authorization of the Deputy Registrar, Kakamega High Court to execute all necessary forms and instruments of transfer to ensure the plaintiff is registered as absolute proprietor of L.R. No. S. Wanga/Musanda/953 measuring approximately 6.6 Ha
3.An order of eviction to issue against the defendant/respondent from L.R. No. S. Wanga/Musanda/953 after registration

Authorities

Legislation

Civil Procedure Act (Cap 21)sections 1A, 1B, 3A
Civil Procedure Act (Cap 21)section 98
Civil Procedure Rules 2010Order 51 rule 1
Civil Procedure Rules 2010Order 45 rules 1 and 2

Jurisdiction invoked: Sections 1A, 1B, 3A and 98 of the Civil Procedure Act (Cap 21) and Order 45 rule 1 and 2 and Order 51 rule 1 of the Civil Procedure Rules 2010 (originating suit heard in first instance)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Adam Ambani Mulunda v Richard Mapesa Matuli [2020] KEELC 3518 (KLR)", Case Analysis (2020). Kakamega HCCC No. 40 of 2011 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3518/eng@2020-02-18

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