Case ID:171776
Parties: None
Date Delivered: None
Case Type: None
Court: None
Judges: None
Citation: None
Albert Boyo Kirui v Benjamin Kiprotich A. Kigen & 5 others [2021] eKLR
Case Metadata
Case Number:
Environment and Land Case 61 of 2017
Parties:
Albert Boyo Kirui v Benjamin Kiprotich A. Kigen, Kipkurui Cherutich, Erick Kiptum Kimosop, County Land Registrar Trans-Nzoia, County Surveyor Trans-Nzoia & Attorney General
Date Delivered:
03 Mar 2021
Case Class:
Civil
Court:
Environment and Land Court at Kitale
Case Action:
Ruling
Judge(s):
Francis Mwangi Njoroge
Citation:
Albert Boyo Kirui v Benjamin Kiprotich A. Kigen & 5 others [2021] eKLR
Court Division:
Environment and Land
County:
Trans Nzoia
Case Outcome:
Hearing of the suit will be on 27/4/2021
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
ELC CASE NO.61 OF 2017
ALBERT BOYO KIRUI.......................................................PLAINTIFF
VERSUS
BENJAMIN KIPROTICH A. KIGEN.........................1
ST
DEFENDANT
KIPKURUI CHERUTICH..........................................2
ND
DEFENDANT
ERICK KIPTUM KIMOSOP.....................................3
RD
DEFENDANT
THE COUNTY LAND REGISTRAR
TRANS-NZOIA...........................................................4
TH
DEFENDANT
THE COUNTY SURVEYOR .
TRANS-NZOIA..........................................................5
TH
DEFENDANT
THE ATTORNEY GENERAL......................................6
TH
DEFENDANT
RULING
The Application
1. In the Notice of Motion dated
20/1/2021
and filed in court on
21/1/2021
and which has been brought under
Sections 1A, 1B, 3 & 3A
of the
Civil Procedure Act
and
Order 40 Rule 1, 2, 3
and
4, Order 46 Rule 18, Order 51 Rule 1
of the
Civil Procedure Rules
and
Section 3
and
13 (1) (7)
of the
Environment and Land Court Act 2011,
the 3
rd
defendant,
Erick Kiptum Kimosop,
seeks the following orders:-
(1) That this application be certified urgent and the same be heard forthwith
ex parte
.
(2)
That there be a temporary order of injunction restraining the plaintiff/respondent, his servants, agents, employees or any other person acting under his directions or authority from trespassing into, fencing, surveying, ploughing, selling, transferring, encumbering, laying any claim thereto or otherwise interfering with the parcel of land No. KWANZA/NAMANJALALA BLOCK 4/KAPSITWET/131 measuring five (5) acres or thereabouts pending hearing and determination of this application
inter partes.
(3)
That there be a temporary order of injunction restraining the plaintiff/respondent, his servants, agents, employees or any other person acting under his directions or authority from trespassing into, fencing, surveying, ploughing, selling, transferring, encumbering, laying any claim thereto or otherwise interfering with the parcel of land No. KWANZA/NAMANJALALA BLOCK 4/KAPSITWET/131 measuring five (5) acres or thereabouts pending hearing and determination of this suit.
(4)
That the Report of the County Surveyor dated 5/7/2019 and filed in court on 9/7/2019 be adopted as judgment of this court.
(5)
That costs be paid by the plaintiff/respondent herein.
2. The application is supported by the affidavit of the applicant sworn on
20/1/2021.
The grounds at the bottom of the application are that: in a ruling that the court made on
28/2/2019
it directed the County Surveyor to visit Plot No.
Kwanza/Namanjalala/Kapsitwet Block 4/45
and
Kwanza/Namanjalala/Kapsitwet Block 4/131
to confirm the acreage of each of the parcels and whether there is encroachment by any of the parties; that the surveyor prepared and filed a report in court on
9/7/2019
which established that the plaintiff has encroached on the 3
rd
defendant/applicant’s portion of land measuring
2.562 acres;
that the surveyor did place beacons on the ground which the plaintiff has now removed and that it is necessary that appropriate orders be made to bring the dispute to an end.
The Response
3. I have perused the court file and I have found no response to the application filed by the plaintiff.
Submissions
4. The applicant filed his written submissions on
19/2/2021
. I have perused the court record and found no submissions filed by the plaintiff respondent.
Determination
5. The issues arising for determination in the instant application are whether an interim injunction should issue restraining the plaintiff from interfering with the 3
rd
defendant’s land and whether the report of the county surveyor dated
5/7/2019
should be adopted as a judgment of this court.
6. This court has considered the fact that there is no evidence that the parties have agreed on the surveyor’s report as filed. Consequently it has to be produced at a hearing by the appropriate witness for it to form part of the evidence in this file record. For that sole reason this court will not accede to
prayer no 4
of the application.
7. This court has also observed that the contents of that report appear to indicate that the plaintiff has encroached on land that is not his. He is also alleged to have interfered with the beacons that the surveyor fixed on the ground in the process of determining the true and correct boundary between the two parcels subject matter of this suit. However this court’s opinion which is based on the observation that the surveyor’s report has not yet been produced in evidence is that it is unsafe to proceed to issue orders of injunction at this stage as urged even though the application is unopposed.
8. The upshot of the above is that the application dated
20/1/2021
is hereby rejected. The court has however noted that this is a matter that should have been concluded long ago had the plaintiff been keen to prosecute his case and finalize it. The plaintiff has not fixed any hearing dates since the filing of the surveyor’s report. Consequently this court on its own motion hereby directs a priority hearing date ought to be allocated to this suit. Consequently, I order that the hearing of the main suit will be on
27/4/2021.
The
3
rd
defendant shall secure from the court
and serve witness summons
upon the
County Surveyor
to enable him attend court to produce the report as evidence. The parties shall avail all his witnesses on the same date in readiness for conclusion of their respective cases. On the hearing date, the witnesses shall adopt their written witness statements on the record and be cross-examined.
It is so ordered.
DATED, SIGNED AND DELIVERED AT KITALE VIA ELECTRONIC MAIL ON THIS 3RD DAY OF MARCH, 2021.
MWANGI NJOROGE
JUDGE, ELC, KITALE.