Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNyeri Civil Appeal No. 143 of 2008 (remitted to the High Court at Embu)· [2022] KEELC 463 (KLR)

Joseph Nyaga Njeru v Thomas Nyaga Njuki (Substituting Njuki Rabuta (Deceased) [2022] KEELC 463 (KLR)

High Court of Kenya
23 March 2022
AKA.K. Kaniaru
2,379 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This ruling by A.K. Kaniaru J of the High Court at Embu, delivered on 23 March 2022, executed a remittal from the Court of Appeal in Nyeri Civil Appeal No. 143 of 2008. The plaintiff, Joseph Nyaga Njeru, had successfully claimed three acres of land parcel Evuvore/Nguthi/1507 by adverse possession; the Court of Appeal affirmed his entitlement by adverse possession to the portion he occupied but remitted the suit to the High Court to ascertain the exact acreage of that portion as at 2 October 2002. Pursuant to directions issued on 31 October 2019, to which both counsel consented (the suggestion having come from the defendant's own counsel), a government surveyor surveyed the land in the presence of the parties using GPS technology. The survey fixed the plaintiff's occupied area (Area B) at 1.216Ha (3.005 acres) and the defendant's area (Area A) at 1.666Ha (4.1 acres). The defendant withdrew from the exercise when the plaintiff pointed out his area, and later argued in submissions that the report was lopsided, that the plaintiff bore the burden of proof and should have testified, and that a fresh hearing was required. The court held that the defendant had consented to the survey modality, had abandoned it of his own volition in breach of the court order, and that no misconduct or lack of diligence by the surveyor was alleged. The surveyor had been cross-examined and neither party sought to adduce further evidence. The court adopted the surveyor's report and ordered that the plaintiff be registered as owner of 1.216Ha of the suit parcel, effectively crystallising his adverse possession entitlement.

Key legal issues

#
01

Whether the surveyor's report should be adopted as the means of ascertaining the acreage occupied by the plaintiff

Holding

The report was lawfully prepared pursuant to a consent and a court order and is sufficient to determine the acreage; it was adopted.

Reasoning

The parties, at the defendant's own suggestion, consented to a government surveyor ascertaining the occupied portion. The surveyor summoned both parties, conducted the exercise with GPS technology, and the defendant withdrew only when the plaintiff showed his area. No misconduct or lack of diligence was alleged. The defendant's withdrawal amounted to non-compliance with the court order, which the court could not condone.

p. 3
02

Whether a fresh hearing with viva voce evidence was necessary to fix the acreage

Holding

No. The request was late, the surveyor was cross-examined, and neither party sought to call further evidence at that stage; litigation must come to an end.

Reasoning

The Court of Appeal had remitted the suit solely for ascertainment of acreage. The surveyor produced and was cross-examined on his report, after which neither party indicated an intention to adduce further evidence. Raising the demand for a hearing only in submissions, at the tail-end of the case, was a lost opportunity and could not sustain what would amount to a mini-trial.

p. 3

Legal principles established

#
  • A party who consents to a mode of ascertainment ordered by the court cannot later resile from it or be aided by the court after disregarding the order.
  • Ascertainment of acreage of land requires expert evidence of a surveyor; party evidence alone is insufficient.

Court orders

#
  1. 1.Adoption of the surveyor's report dated 16.3.2020
  2. 2.That the plaintiff be registered as owner of 1.216Ha of suit parcel Evuvore/Nguthi/1507

Authorities

#

Legislation

  • Evidence Actgeneral (burden of proof - he who alleges must prove)
On appeal from
Court of Appeal
Nyeri Civil Appeal No. 143 of 2008
Jurisdiction invoked
Remittal by the Court of Appeal of the suit to the High Court for ascertainment of the acreage occupied by the plaintiff as at 2nd October 2002

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Joseph Nyaga Njeru v Thomas Nyaga Njuki (Substituting Njuki Rabuta (Deceased) [2022] KEELC 463 (KLR)", Case Analysis (2022). Nyeri Civil Appeal No. 143 of 2008 (remitted to the High Court at Embu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/463/eng@2022-03-23

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