Pangrasio Mukhwana Okana v Jesse Ndubi Nakhumwa & Paul Onyango Mkado [2015] KEHC 4609 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 100 OF 2014.

PANGRASIO MUKHWANA OKANA……..…………………………..PLAINTIFF/APPLICANT.

=VERSUS=

JESSE NDUBI NAKHUMWA……….………………………………………….1ST DEFENDANT

PAUL ONYANGO MKADO………..…………………………………………….2ND DEFENDANT

R U L I N G.

The Applicant, JESSIE  NDUBI  MUKHWANA, filed the application dated 5th February, 2015  against the  Respondent, PANGRASIO MUKWANA OKANA, seeking  to have the plaint struck out and the suit dismissed for being an abuse of  the court’s  process in view of  the Land Registrar’s report  dated 20th August, 2014. The application is supported by the affidavit of Francis Omondi, counsel for the Applicant, sworn on 5th February, 2015.

The Respondent opposed the application and filed the replying affidavit sworn on the 31st March, 2015. The application came up for hearing on 5th May, 2015. Mr.  Omondi for the Applicant and the Respondent presented their submissions.

The court has considered the grounds on the application, contents of the supporting and replying affidavit s and submissions and find as follows;

That the Respondent  commenced this suit through  the plaint dated 6th  May,  2014 praying for;

The Defendants be injuncted against encroaching onto land parcel South Teso/Angoromo/920.

That the County Surveyor be ordered to rectify the common boundaries between  land parcels South Teso/Angoromo/920, 7786 and 8474.

Costs.

That the Respondent then filed the notice of motion dated 20th June, 2014 seeking for temporary injunction against the Defendants pending the hearing and determination of this suit.  When the application came up for hearing, inter partes on 3rd July, 2014, the parties  were represented by counsel  and a consent referring  the matter to the County  Land Registrar and Surveyor to visit parcels South Teso/Angoromo/920, 7786 and 8474 and confirm  their boundaries  was entered  into.  It was  also agreed that each party be at liberty to appoint a survey witness the exercise.

That the Land  Registrar  and Surveyor  carried out  the exercise  on 20th  August, 2014  and forwarded  their report through  the letter  dated 5th November, 2014. The reports shows that the boundaries to the three parcels were clearly marked on the ground and after measurement, parcels South Teso/Angoromo/920, 7786 and 8474 were found to be 0. 1, 0. 05 and 0. 02 hectares respectively. The Land Registrar  therefore  came to the conclusion  that;

‘’ There is no evidence of change of boundaries to warrant a boundary dispute. The acreages for each

Parcel has been confirmed to be proper as originally registered. Each party ordered to maintain the   boundaries as currently established.’’

The consent order referring the matter to the Land Registrar and surveyor effectively meant prayer (b) of the paint dated 6th May, 2014 had become spent albeit before the taking of oral evidence. It  is therefore  not among the prayers  that the court  would consider to grant  even if matter  was to continue  to taking  of oral evidence.

That the  Land Registrars report  dated 5th November, 2014  settled  the question  of the common  boundaries  between  the three named parcels. There was no evidence  of encroachment noted  or established amongst the three  parcels  and in view of the provisions of section – of Land  Registration  Act 2012, that position  is not likely  to be changed  by the parties oral evidence.

That as  the report from the Land Registrar  dated 5th November, 2014 shows that the Defendants have not encroached onto the Plaintiff’s  land, there would be no basis of injuncting them  as prayed  in prayer (9)  of the plaint. There is therefore no basis of this suit getting oral evidence taking as no triable issues remain between  the  parties. The Plaintiff/Respondent should have taken the step of seeking to withdraw the suit after the Land Registrar’s report but did not.  The application  dated 5th  February, 2015  therefore has merit and is allowed and the following orders  issued;

That plaint dated 6th May, 2014 is hereby struck out.

The Plaintiff’s suit is dismissed with costs to the Defendants.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 27TH DAY OF MAY, 2015.

IN THE PRESENCE OF;

PLAINTIFF/RESPONDENT………… PRESENT………………………………………

1ST DEFENDANT/APPLICANT………ABSENT…………………………………………

2ND DEFENDANT……………………  ABSENT…………………………………………

COUNSEL……………………………  ABSENT………………………………………….

JUDGE.