Case ID:169488

Mude Husein Mohamed & 5 others v Masinde Muliro University of Science And Technology & 5 others; Mount Kenya University (Interested Party) [2021] eKLR

Case Metadata

Case Number:

Land Case 48 of 2019

Parties:

Mude Husein Mohamed, Rodgers Samanya, Hassan Abdulahi Ali, James Njenga Nyaga & Publican (Africa) Ltd v Masinde Muliro University of Science and Technology, Turkana University College(Being sued as a Constituent College of the 1st Defendant), County Government of Turkana, Commissioner of Land, County Surveyor Turkana County & Attorney General; Mount Kenya University (Interested Party)

Date Delivered:

26 Jan 2021

Case Class:

Civil

Court:

Environment and Land Court at Kitale

Case Action:

Ruling

Judge(s):

Francis Mwangi Njoroge

Citation:

Mude Husein Mohamed & 5 others v Masinde Muliro University of Science And Technology & 5 others; Mount Kenya University (Interested Party) [2021] eKLR

Court Division:

Environment and Land

County:

Trans Nzoia

Case Outcome:

Application dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 48 OF 2019

MUDE HUSEIN MOHAMED.........................................1

ST

PLAINTIFF

RODGERS SAMANYA..................................................2

ND

PLAINTIFF

HASSAN ABDULAHI ALI............................................3

RD

PLAINTIFF

JAMES NJENGA NYAGA............................................4

TH

PLAINTIFF

ABDULRAHMAN WAMALA......................................5

TH

PLAINTIFF

THE PUBLICAN (AFRICA) LTD...............................6

TH

PLAINTIFF

VERSUS

MASINDE MULIRO UNIVERSITY

OF SCIENCE AND TECHNOLOGY........................1

ST

DEFENDANT

TURKANA UNIVERSITY COLLEGE

(Being sued as

a Constituent College

of the 1

st

Defendant)...........

2

ND

DEFENDANT

THE COUNTY GOVERNMENT

OF TURKANA.........................................................3

RD

DEFENDANT

THE COMMISSIONER OF LAND......................4

TH

DEFENDANT

THE COUNTY SURVEYOR

TURKANA COUNTY............................................5

TH

DEFENDANT

THE HON. ATTORNEY GENERAL..................6

TH

DEFENDANT

AND

MOUNT KENYA UNIVERSITY.................INTERESTED PARTY

RULING

1.

The application dated

11/5/2020

and filed in court on

29/5/202

, has been bought under

Order 40 Rule 1 (a)

of the

Civil Procedure Rules.

The plaintiffs seek the following orders:-

(1) That upon hearing and determination of this application this honourable court be and hereby pleased to order a survey to be conducted and report be filed in court on the following disputed parcels of land by establishing their actual acreage on the ground:

(a) Land Parcel No. LR.14691/425 Kanamkemer, Lodwar-Turkana County

(b) Plot No. 931

(c) Plot No. 932

(d) Plot No. 829

(e) Plot No. 976 ‘A’

(f) Plot No. 790

(g) Plot No. 920

(h) Plot No. 888.

(2) That the survey report to establish whether land parcel LR No. 14691/425 Kanamkemer, Lodward-Turkana County extends to the main Lodwar-Kitale Road including the plaintiffs/applicants plots descried at prayer 1(b), (c), (d), (e), (f) and (g) above.

(3) The OCS, Lodwar Police Station be directed to maintain peace, supervision and enforcement of the orders of this honourable court.

(4) That costs of the survey be borne by the p plaintiffs/applicants but to ultimately abide by the outcome of the main suit.

(5) That the costs of this application be in the cause.

2.

The application is supported by the affidavit sworn on

11/5/2020

by the 1

st

and 2

nd

plaintiffs who have authority from the 3

rd

to 6

th

plaintiffs herein. The grounds upon which the application is made are that the plaintiff’s case in the plaint is that their plots are separate and distinct from the 1

st

defendant’s land parcel yet the 1

st

defendant asserts that the plaintiff’s parcels of land are part of its land hence the need for a survey.

3.

The 1

st

and 2

nd

defendants through its

Ag. Principal, Prof. George Chemining’wa

filed replying affidavit sworn on

11/5/2020

. His response is that the application lacks merit; that the plaintiffs made specific claims that they had parcel numbers adjacent to the fence in the forecourt of the 2

nd

defendant’s land and gave their specific plot measurements while the 1

st

defendant purchased land measuring

42.02 ha

; that the plaintiffs therefore know their actual acreage on the ground; that the issues in respect of the plaintiff’s claim over the defendants’ land is already addressed by this court in its ruling of

13/2/2020

and the plaintiffs are merely intent on secretly introducing new issues and are engaged in a fishing expedition and the only option for them is to set down the suit for hearing.

4.

The Interested Party and the 3

rd

, 4

th

5

th

and 6

th

respondents were not opposed to the application dated

11/5/2020

.

5.

The plaintiffs filed their written submissions on

9/12/2020

. The 1

st

and 2

nd

defendants filed their submissions on

11/1/2021.

6.

I have considered the application, the response and the submissions of the parties. The main question that arises for determination is whether a survey should be ordered by the court. This court must therefore address itself whether there is need for such a survey. The argument of the plaintiffs is that there is need to ascertain the acreage of the total sizes of the land occupied by the plaintiffs and the 1

st

defendant on the ground.

7.

Having considered the application, I find that the present dispute is not a boundary dispute, it is a dispute regarding title to land. It is therefore incumbent upon the parties to bring evidence to the fore in order to demonstrate that their plots were properly surveyed, that they exist or that they have titles to them.

8.

It is this court’s view that if the processes of allocation and survey of the parties’ respective plots were properly documented by the relevant offices or titles issued pursuant to such allocation and survey, then such evidence as any of the parties requires to prove either the statements in the plaint and defence can only be based on the existing records and not any future records to be created. I do not have any evidence before me that the existing records are not sufficient, when presented adroitly in evidence, to establish each party’s respective claim. In other words this court agrees that the parties already have the evidence with which to prove their respective claims of purchase, allocation, or survey with them and it does not appear necessary for this court to commission a survey in respect of the land. Consequently, this court finds that the application dated

11/5/2020

is unmerited and the same is hereby dismissed with costs to the defendants

Nos. 1

and

2

only

.

It is so ordered.

Dated, signed and delivered at Kitale via electronic mail on this 26

th

day of January, 2021.

MWANGI NJOROGE

JUDGE, ELC, KITALE.