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ELCOtherEnvironment & Land Case 329 of 2013· [2023] KEELC 21113 (KLR)

Ngaruhia v Mwangi & 2 others

Environment and Land Court
30 October 2023
JOJ.M Onyango
920 words in judgment
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The bottom line

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A court-ordered survey report confirms land boundaries but cannot by itself decide who rightfully owns disputed parcels in Kenya.

What this practically means

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Executive summary

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This interlocutory ruling by J.M Onyango of the Environment and Land Court at Eldoret arises from a land dispute originally filed by Ngaruhia Kamau (since deceased and substituted by his widow, Jane Wanjiru Ngaruhia) against Joseph Irungu Mwangi, the Uasin Gishu Land Registrar and Yamumbi Uasin Gishu Cooperative Society. The plaintiff alleged that parcels Kapsaret/Kapsaret Block 1 (Yamumbi)/227 and /228 were unlawfully created and sought a permanent injunction, eviction, a declaration that the issuance of title for parcel 228 was null and void, mesne profits, costs and interest. With the parties' consent, the court in July 2013 directed the County Surveyor to establish the boundaries and acreage of the two parcels and any encroachment. The surveyor, Mr Jacob Shadiva, filed a report in August 2013 finding that the ground acreage of both parcels was less than the registered acreage and recommending that existing ground boundaries be maintained. After the plaintiff's death and substitution, and partial hearing before Justice Ombwayo in 2016, the retired surveyor testified virtually on October 4, 2023, confirming his report and refuting claims that the survey was not conducted. The court was asked to determine whether the survey report settles the issues in dispute and whether it should be adopted as the judgment. Holding that the report only confirms ground acreage and cannot establish whether parcel 288 was unlawfully curved out of parcel 227, the court declined to adopt it as judgment and directed that the matter proceed to full hearing with all witnesses, the report to be considered with the totality of the evidence. No costs order was made.

Key legal issues

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Whether the survey report should be adopted as the judgment of the court

Holding

The report was not adopted as judgment; it does not resolve the dispute over the origin of parcel 288

Reasoning

The surveyor confirmed his findings that ground acreage of both parcels is less than the registered acreage and recommended maintenance of existing ground boundaries. However, the court found the report only confirms acreage and boundaries on the ground; it cannot establish whether parcel 288 was unlawfully curved out of parcel 227, which requires the parties' evidence. Another survey would not change anything since land is static.

p. 2

Legal principles established

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  • A court-ordered survey report establishing ground acreage and boundaries does not by itself determine the substantive question of whether one parcel was unlawfully curved out of another; it is evidence to be weighed with the rest of the record

Court orders

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  1. 1.The matter to proceed from where it had reached so that the parties call all their witnesses
  2. 2.The survey report to be considered together with the evidence on record before the court makes its final determination
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land parcels Kapsaret/Kapsaret Block 1 (Yamumbi)/227 and /228

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, "Ngaruhia v Mwangi & 2 others", Case Analysis (2023). Environment & Land Case 329 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21113/eng@2023-10-30

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