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ELCOther· [2024] KEELC 362 (KLR)

Kipsoi v CEC Member of Lands, Physical Planning & Urban Development, Uasin Gishu & another (Environment & Land Case E95 of 2020) [2024] KEELC 362 (KLR)

Environment and Land Court
25 January 2024
JOJ.M ONYANGO
839 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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When two survey reports conflict in a Kenyan land dispute, the court will not adopt either until both surveyors come and explain their findings.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret in a suit by the registered proprietor of Langas Block 1/198, who purchased the roughly 5-acre parcel in September 1975 and developed it with a school, business and residential premises and a dairy farm. He claimed that in 1989 he and his neighbours surrendered portions of their land for a 3-metre road and later a road to Yamumbi Trading Centre. When the defendants proposed to expand the road to 9 metres and required further surrenders, the plaintiff's advocates enquired how much more land was required but, instead of a reply, he was served with notice that landowners who had encroached on the road reserve would be dealt with. He sued seeking a permanent injunction, alleging discrimination and compulsory acquisition without due process. The defendants denied the claim, asserting he had encroached on a road reserve. The court, by an order of January 27, 2021, directed the County Surveyor to survey the suit property, and his report of April 14, 2023 found a 1.70m encroachment using the current road centre line. The plaintiff was permitted to engage a private surveyor, Landscan, whose June 13, 2023 report found the entire 6m expansion came from parcel 198, causing him to lose about 0.2068 Ha. Only the plaintiff filed submissions, urging adoption of the Landscan report and, alternatively, cross-examination of the surveyor. Holding the two reports divergent, the court directed that both surveyors be called to shed light on their reports. No costs order was made.

Key legal issues

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Whether the survey reports determine the issues in controversy and should be adopted as an order of the court

Holding

No - because the two reports (the County Surveyor's report dated 14th April, 2023 finding 1.70m encroachment on the suit land, and the Landscan report dated 13th June, 2023 finding the defendants had encroached on the plaintiff's land by 6 metres) are divergent, neither may be adopted without the surveyors being heard.

Reasoning

The court identified the sole issue as whether the survey reports determine the controversy and could be adopted as a court order. It compared the two reports: the County Surveyor found encroachment of 1.70m on the suit land using the current centre line, while Landscan found the entire 6m expansion came from parcel 198, causing the plaintiff to lose about 0.2068 Ha. Given the conflicting findings, the court held the just course was to have both surveyors explain their reports rather than adopt either.

p. 2

Legal principles established

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  • Where expert survey reports before the court are divergent, the justice of the case requires that the makers of the reports be called to shed light on them before the court adopts either as evidence

Court orders

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  1. 1.Both surveyors to be called to shed more light on their reports so as to assist the court to arrive at a just decision
Jurisdiction invoked
Original civil suit jurisdiction of the Environment and Land Court over land parcel Langas Block 1/198 (not expressly stated in the judgment)

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, "Kipsoi v CEC Member of Lands, Physical Planning & Urban Development, Uasin Gishu & another (Environment & Land Case E95 of 2020) [2024] KEELC 362 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/362/eng@2024-01-25

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