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ELCPartially AllowedNotice of Motion dated 3/4/2019 in ELC Suit (Kitale)· [2021] KEELC 2741 (KLR)

Joseph Wandera Owidi & another v Meshack Wafula Sitialo [2021] KEELC 2741 (KLR)

Environment and Land Court
29 June 2021
MNMwangi Njoroge
1,443 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The court ordered a stalled land boundary survey to proceed within 21 days, replacing the surveyor accused of bias and splitting survey costs equally between the parties.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kitale (Mwangi Njoroge, J) determined a Notice of Motion dated 3/4/2019 brought by the Plaintiffs/Decree-holders under Sections 3A and 34 of the Civil Procedure Act. The application sought summons against Mr. Protus Muindi, the County Surveyor Trans-Nzoia, to show cause why he should not comply with the court's order of 16/2/2017 directing the County Surveyor to establish the boundaries of parcels Trans-Nzoia/Makutano/47 and Trans-Nzoia/Makutano/31 and confirm their acreages on the ground against the title deeds. The Applicant averred that the order, upheld by the ruling of 30/5/2017, had never been set aside or appealed against, yet the survey notified for 27/7/2017 never took place. The Respondent opposed the application, contending that Mr. Muindi was not the County Surveyor and was likely to be biased, though conceding that a survey was necessary. The court observed that proceedings of 28/10/2019 showed Mr. Muindi was then the County Surveyor, but to balance competing interests and secure finality in this protracted boundary dispute, it directed that the survey be conducted by any other surveyor from the Trans-Nzoia County Surveyor's office within 21 days. The parties were to share survey expenses equally, with provision for recovery as costs in default; the OCS Kitale Police Station was to provide security; and the surveyor was to file a report on 20/7/2021 when the matter would be mentioned for further directions.

Key legal issues

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01

Enforcement of survey/boundary ascertainment orders issued on 16/02/2017

Holding

The survey ordered on 16/02/2017 remains in force and must be conducted, but by a surveyor other than Mr. Protus S. Muindi to address the Respondent's suspicion of bias and expedite disposal

Reasoning

The court noted that a survey was not disputed; the only reservation was the alleged bias of Mr. Muindi. Balancing competing interests and seeking finality in the protracted suit, the court varied the identity of the surveyor while retaining the substance of the 16/02/2017 orders, provided security and a reporting mechanism.

p. 2

Legal principles established

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  • Courts' orders remain in force unless set aside or appealed against and should be obeyed and complied with

Court orders

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  1. 1.A Surveyor from the Trans-Nzoia County Surveyor's office other than Mr. Protus S. Muindi shall conduct the survey within 21 days in accordance with the orders of court made on 16/02/2017
  2. 2.The parties shall bear the survey expenses equally; in default of payment by any party, the other party may pay and recover the same as costs of a suit if not refunded within 14 days
  3. 3.The OCS Kitale Police Station shall provide security on the day of the survey
  4. 4.The surveyor shall file a report before the court on 20/7/2021 when the matter shall be mentioned for further orders and directions

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 34
Jurisdiction invoked
Sections 3A and 34 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, "Joseph Wandera Owidi & another v Meshack Wafula Sitialo [2021] KEELC 2741 (KLR)", Case Analysis (2021). Notice of Motion dated 3/4/2019 in ELC Suit (Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2741/eng@2021-06-29

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