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ELCAllowedNot stated in judgment (arising from suit filed by Plaint dated 2nd March 2001; Notice of Motion dated 28th July 2021)· [2022] KEELC 3114 (KLR)

Obonyo v Nyanjom & another (Environment & Land Case 275 of 2017) [2022] KEELC 3114 (KLR)

Environment and Land Court
22 July 2022
1,800 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kisumu court ordered owners of four plots to demolish structures blocking an access road after a government surveyor confirmed the encroachment.

What this practically means

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Executive summary

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The Plaintiff, whose suit dated 2nd March 2001 sought unblocking of an access road to his parcel KISUMU/MANYATTA 'A'/2126, obtained a judgment on 7th December 2018 directing the County Land Registrar and County Surveyor to resurvey parcels 2126, 3615 and 3614 to establish boundaries and open the access road. Pursuant to that judgment, a survey report dated 18th May 2021 was compiled, finding that parcels 1203, 1251, 1202 and 1201 had encroached on the access road, and that a brick house on parcel 1201 partly encroached on it. The Plaintiff then moved the court by Notice of Motion dated 28th July 2021 seeking adoption of the report, a mandatory injunction compelling removal of illegal structures on the access road, supervised implementation, presence of the County Land Surveyor at demolition, and police oversight. The 2nd Defendant opposed, contending he sold his interest in parcel 3615 in 2001 and was never served with summons; that the report did not name his parcel as encroaching; and that orders should not affect third parties unheard, relying on Kenleb Cons Ltd v New Gatitu Service Station Ltd on mandatory injunctions. The Plaintiff and 1st Defendant filed no submissions. The court found the survey report established the encroachment, adopted it, and issued a mandatory injunction against the 1st and 2nd Respondents or the proprietors of the four encroaching parcels to remove the illegal structures, with implementation supervised by the Deputy Registrar and overseen by the OCS Kondele Police Station. No costs order was made.

Key legal issues

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01

Whether the surveyor's report should be adopted and implemented

Holding

The court adopted the survey report dated 18th May 2021 and ordered its implementation under supervision, finding the report established encroachment on the access road by four parcels.

Reasoning

Following the judgment of 7th December 2018 which ordered a resurvey of the disputed parcels to establish boundaries and open the access road, the County Land Registrar and County Surveyor compiled a report on 18th May 2021. That report found parcels 1203, 1251, 1202 and 1201 had encroached on the access road, with a brick house on parcel 1201 partly encroaching. The court, being of the view that the report established the encroachment, adopted it and ordered mandatory removal of the illegal structures, with implementation supervised by the Deputy Registrar and overseen by police.

p. 4
02

Whether orders could issue against the 2nd Defendant who claims he no longer owns or possesses the affected parcels

Holding

The mandatory injunction was nonetheless issued against the 1st and 2nd Respondents, but framed to extend to the proprietors of the encroaching parcels identified in the survey report.

Reasoning

The 2nd Defendant contended he sold parcel 3615 to one Oloo Michael in 2001 and was never served with summons, and that the survey report did not name parcel 3615 as encroaching. He argued it would be unjust to affect parties not before the court without a hearing. The court did not expressly resolve this objection, but the mandatory injunction it issued targeted the proprietors of the four parcels found to have encroached, none of which was parcel 3615, effectively addressing the objection while still naming the Respondents.

p. 2

Legal principles established

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  • A court may adopt a court-ordered surveyor's report and enforce it by mandatory injunction against the proprietors of parcels found to have encroached on an access road.

Court orders

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  1. 1.The Surveyor's report dated 18th May 2021 is hereby adopted
  2. 2.An order of Mandatory Injunction compelling the 1st and 2nd Respondents or the proprietors of land parcels KISUMU/MANYATTA 'A'/1203, KISUMU/MANYATTA 'A'/1251, Kisumu/Manyatta 'A'/1202 and Kisumu/Manyatta 'A'/1201 to forthwith remove all illegal fixtures and/or structures, buildings illegally erected onto the access road
  3. 3.An order that the survey report of the County Land Registrar dated 18th May 2021 be implemented under the supervision of the Deputy Registrar
  4. 4.An order that the County Land Surveyor be present during the demolition to determine the position of the access road
  5. 5.An order that the OCS Kondele Police Station or any other relevant police station shall oversee the execution of the order

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 51

Cases cited (1)

  • Kenleb Cons Ltd vs New Gatitu Service Station Ltd and Another
    (1990) eKLR
Jurisdiction invoked
Article 40 and Article 159 of the Constitution; sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 of the Civil Procedure Rules

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, "Obonyo v Nyanjom & another (Environment & Land Case 275 of 2017) [2022] KEELC 3114 (KLR)", Case Analysis (2022). Not stated in judgment (arising from suit filed by Plaint dated 2nd March 2001; Notice of Motion dated 28th July 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3114/eng@2022-07-22

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