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ELCDismissedNot stated in the judgment· [2025] KEELC 6470 (KLR)

Kaluu & another v Kituku & 13 others (Environment and Land Case 315 of 2017) [2025] KEELC 6470 (KLR)

Environment and Land Court
25 September 2025
TMT. Murigi
8,846 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~35 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a land dispute, confirming that a private licensed surveyor could lawfully subdivide the land under the 1992 judgment.

What this practically means

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Executive summary

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The Plaintiffs, beneficiaries of the judgment of Hon. Justice Mwera delivered on 14th January 1992 in HCCC No. 2749 of 1981 (consolidated with HCCC No. 2207 of 1982), sued the 1st to 14th Defendants challenging the subdivision of L.R. No. 7612/2 Machakos District. That judgment had found that the Defendants had acquired the suit property by adverse possession, ordered its demarcation and registration in favour of the entitled defendants, and directed 'a local survey and registry offices' to act accordingly. Title was registered in 20 named persons who held it in trust for 143 families. The Plaintiffs complained that the subdivision was carried out by a private surveyor, the 13th Defendant, instead of a Government Surveyor, that they were displaced or under-allocated, and that land was sold to outsiders. They sought permanent injunctions, declarations that the subdivisions were null and void, an order for subdivision per the 1992 judgment, and costs. The court identified two issues: whether the suit land was lawfully subdivided, and whether the Plaintiffs were entitled to the orders sought. Applying Section 2 of the Survey Act, the court held that a 'local surveyor' includes any licensed surveyor, whether Government or licensed, and found the 13th Defendant was lawfully appointed by the elected Committee pursuant to resolutions of the members, some signed by the 1st Plaintiff. The subdivision plan was approved by the County Government of Makueni and the National Land Commission, and the Registry Index Map was transmitted to the Land Registrar. The Plaintiffs adduced no evidence of displacement, under-allocation or sales to outsiders, and had failed to object to the published notice. The suit was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the suit land was lawfully subdivided by a private (licensed) surveyor

Holding

The 13th Defendant, a licensed surveyor, qualifies as a 'local surveyor' under the Survey Act and was lawfully appointed by the Committee; the subdivision was lawful

Reasoning

The judgment of Justice Mwera directed 'a local survey', not specifically a Government Surveyor. Under Section 2 of the Survey Act a surveyor may be a Government or licensed surveyor. The Committee was elected by the 143 families, the 1st Plaintiff attended and signed the minutes of the meeting authorizing the survey, a contract was signed on 13 January 2012, the notice inviting objections was published and not opposed, and the subdivision plan was approved by the County Government of Makueni and the National Land Commission.

p. 14
02

Whether the Plaintiffs were displaced, deprived of their entitlements, or land allocated to outsiders

Holding

No evidence supported the allegations; the Plaintiffs did not dispute the acreage allocated to them and admitted no one was moved from their land

Reasoning

The 13th Defendant subdivided the land per the list provided by the Committee. The Plaintiffs' own allocations per that list were not disputed in evidence. No names of outsider purchasers were given, no evidence of eviction was tendered, and PW2 admitted selling 6 acres himself. Under Sections 107(1) and (2) of the Evidence Act the burden lay on the Plaintiffs, which they failed to discharge.

p. 17
03

Whether the Plaintiffs were entitled to the permanent injunction and declaratory orders sought

Holding

No, having failed to prove their case on a balance of probabilities the suit was dismissed

Reasoning

A permanent injunction is granted on the merits after evidence is tendered. The Plaintiffs did not establish a prima facie case of infringement of their property rights, and failed to prove that the subdivision was unlawful or contrary to the judgment of 14th January 1992.

p. 17

Legal principles established

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  • A 'local survey' as directed in the 1992 judgment includes a survey by any surveyor licensed under the Survey Act, whether a Government or licensed surveyor
  • The burden of proof lies on the party alleging the existence of facts upon which he seeks judgment
  • A permanent injunction is granted on the merits after hearing the suit and fully determines the rights of the parties

Court orders

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  1. 1.The Plaintiffs' suit is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Survey ActSection 2
  • Survey ActSection 21
  • Evidence ActSection 107(1) and (2)
  • Civil Procedure CodeSections 1A, 3 & 3A

Cases cited (4)

  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mrao v First American Bank of Kenya Ltd & 2 others
    [2002] eKLR
  • Kenya Power & Lighting Co. Limited v Sherifi Molana Habib
    [2018] eKLR
  • Bandari Investments & Co. Ltd v Martin Chiponda & 139 others
    [2022] eKLR
Jurisdiction invoked
Original civil jurisdiction over land claims (further amended Plaint dated 16th May 2018)

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, "Kaluu & another v Kituku & 13 others (Environment and Land Case 315 of 2017) [2025] KEELC 6470 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6470/eng@2025-09-25

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