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ELCAllowedNot stated in the judgment (Notice of Motion dated 7th December, 2020)· [2021] KEELC 686 (KLR)

Wambua Muthama Kakui v Jones Mulwa Ndonye [2021] KEELC 686 (KLR)

Environment and Land Court
30 November 2021
CMC.G. Mbogo
1,052 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered surveyors and police to finally implement a 36-year-old land boundary decision that had been ignored since 1985.

What this practically means

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Executive summary

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The applicant, Wambua Muthama Kakui, moved the court by Notice of Motion dated 7th December 2020 under Order 51 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking an enforcement order compelling the District Surveyor to implement the Minister's decision in Land Appeal Case No. 495 of 1985 by ascertaining and marking the boundaries of Land Parcel No. Ukia/Utaati/1327, with the OCS Makueni to ensure compliance. The respondent, Jones Mulwa Ndonye, opposed, deposing that the District Surveyor had already implemented the decision on 18th December 2007 and that he had cooperated throughout. The application was canvassed by written submissions, with the respondent framing two issues: whether the boundary realignment was conducted, and costs. The court traced the correspondence: the Director of Land Adjudication instructed the District Surveyor to implement the decision; re-alignment was scheduled for 18th December 2007, then 6th November 2014, then 26th November 2014; and a Ministry letter of 5th May 2015 confirmed the exercise could not proceed because the objectors were hostile. Despite a letter suggesting implementation and the applicant's own equivocal letter of 27th November 2014, the court found the Minister's decision remained unimplemented. The court allowed the application and issued the enforcement order, with the OCS Makueni to ensure compliance, and provided for costs.

Key legal issues

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01

Whether the Minister's decision in Land Appeal Case No. 495 of 1985 had been implemented

Holding

The court held the decision remained unimplemented despite multiple attempted dates for the boundary re-alignment exercise, and the applicant's own correspondence confirmed implementation had not been effected due to hostility from objectors.

Reasoning

The court traced the sequence of letters from the District Surveyor scheduling the re-alignment for 18th December 2007, then 6th November 2014, then 26th November 2014. Although one letter of 7th October 2014 suggested the ruling was implemented, and the applicant's letter of 27th November 2014 partially confirmed implementation, the Ministry's letter of 5th May 2015 confirmed the exercise could not be carried out because the objectors were hostile. The court therefore found the decision unimplemented and granted the enforcement order sought.

p. 2

Legal principles established

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  • Where a ministerial decision on a land appeal remains unimplemented, the court may issue an enforcement order compelling the District Surveyor to implement it, with police assistance to secure compliance.

Court orders

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  1. 1.An enforcement order issued to the District Surveyor to implement the decision made by the Minister in Land Appeal Case No. 495 of 1985 and ascertain and mark/put boundaries of the Land Parcel No. UKIA/UTAATI/1327
  2. 2.The Officer Commanding Station Makueni to ensure compliance of the order
  3. 3.Costs of the application provided for

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 51
  • Land Adjudication ActNot specified
Jurisdiction invoked
Order 51 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Wambua Muthama Kakui v Jones Mulwa Ndonye [2021] KEELC 686 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of Motion dated 7th December, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/686/eng@2021-11-30

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