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ELCDismissedELC Case (Thika) - Notice of Motion dated 24th July 2020· [2021] KEELC 3638 (KLR)

Gladys Waithira Kamau v Mary Nyambura Wahome & 19 others [2021] KEELC 3638 (KLR)

Environment and Land Court
22 April 2021
LGL. Gacheru
1,123 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that contested land ownership must be proven at a full hearing before courts order surveys of disputed property.

What this practically means

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Executive summary

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By a Notice of Motion dated 24th July 2020 under Sections 3, 3A and 63(e) of the Civil Procedure Act, the plaintiff, Gladys Waithira Kamau, sought an order authorising a surveyor to visit some twenty-two suit properties in Ruiru/Kiu Block 4, locate the beacons, ascertain developed and non-developed portions and file a report within fourteen days, with the OCS Kimbo Police Station supervising the exercise. She averred that she purchased the plots from Mwihoko Housing Company Limited in 1987, holds valid title deeds, and that the defendants are trespassers who had closed pathways and planted crops, suggesting interference with beacons. The defendants, led by Samuel Ndungu Ngugi, opposed the application, contending that they too purchased the properties from Mwihoko Housing Company Limited with approved subdivision schemes and took possession, and that they only discovered the plaintiff's registration in 2018; the Ministry of Lands issued recommendations in May 2019, and the defendants had filed ELC 130 of 2019 seeking cancellation of the plaintiff's titles. The court held that the dispute is one of ownership, not boundaries, that the prayers sought were final orders which could not be granted in an interlocutory application, and that the plaintiff must first prove lawful ownership and procedural registration at the hearing of the main suit. The application was dismissed entirely with costs in the cause, and the plaintiff was directed to set the matter down for hearing within thirty days.

Key legal issues

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01

Whether a surveyor can be directed to locate beacons and ascertain development on contested parcels at the interlocutory stage

Holding

The prayer was premature because the dispute is over ownership, not boundaries, and the plaintiff must first prove lawful and procedural registration at the hearing of the main suit

Reasoning

The court noted the dispute is one of ownership of the suit property rather than a boundary dispute, with all defendants questioning the plaintiff's certificate of title. Related issues are also pending in ELC 130 of 2019. The prayers sought were final in nature and could only be granted after a full hearing; the plaintiff must first prove that registration was lawful and procedural before any survey directions issue.

p. 2

Legal principles established

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  • Final relief such as survey directions determining ownership cannot be granted in an interlocutory application where ownership is contested; the applicant must first prove lawful ownership at the hearing

Court orders

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  1. 1.The Notice of Motion Application dated 24th July 2020 is dismissed entirely
  2. 2.Costs in the cause
  3. 3.The Plaintiff is directed to set the matter down for hearing within the next 30 days from the date of the ruling

Authorities

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Legislation

  • Civil Procedure ActSections 3, 3A and 63(e)
  • Civil Procedure RulesOrder 21 rule 1
Jurisdiction invoked
Sections 3, 3A and 63(e) 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, "Gladys Waithira Kamau v Mary Nyambura Wahome & 19 others [2021] KEELC 3638 (KLR)", Case Analysis (2021). ELC Case (Thika) - Notice of Motion dated 24th July 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3638/eng@2021-04-22

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