Albert Boyo Kirui v Benjamin Kiprotich A. Kigen, Kipkurui Cherutich, Erick Kiptum Kimosop, County Land Registrar Trans-Nzoia, County Surveyor Trans-Nzoia & Attorney General [2021] KEELC 4094 (KLR)

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.........................1ST DEFENDANT

KIPKURUI CHERUTICH..........................................2NDDEFENDANT

ERICK KIPTUM KIMOSOP.....................................3RD DEFENDANT

THE COUNTY LAND REGISTRAR

TRANS-NZOIA...........................................................4THDEFENDANT

THE COUNTY SURVEYOR     .

TRANS-NZOIA..........................................................5TH DEFENDANT

THE ATTORNEY GENERAL......................................6TH DEFENDANT

RULING

The Application

1. In the Notice of Motion dated 20/1/2021and filed in court on 21/1/2021and which has been brought under Sections 1A, 1B, 3 & 3Aof theCivil Procedure ActandOrder 40 Rule 1, 2, 3and 4, Order 46 Rule 18, Order 51 Rule 1of theCivil Procedure RulesandSection 3and13 (1) (7)of theEnvironment and Land Court Act 2011,the 3rd 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 4/45andKwanza/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 9/7/2019which established that the plaintiff has encroached on the 3rd 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 3rd defendant’s land and whether the report of the county surveyor dated 5/7/2019should 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 dated20/1/2021is 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 3rd 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.