Parmuat Oloishorua Kore v Philip Santamo Wauntai,Wauntai Ole Saire Nisa Ole Wuantai (Sued On Their Behalf And As Legal Representatives Of The Estate Of The Late Wauntai Ole Saire), Kajiado Resident Magistrate, Attorney General, Benson Kasioki, Catherine Kinoti & John Namwaso [2015] KEELC 738 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

ENVIRONMENT AND LAND COURT

ELC NO. 629 OF 2014 (OS)

IN THE MATTER OF ORDER 37 & 40 OF THE CIVIL PROCEDURE RULES

AND

IN THE MATTER OF KAJIADO RESIDENT MAGISTRATE MISC. CIVIL APPLICATION NO. 69 OF 2011

AND

IN THE MATTER OF DEFUNCT KAJIADO NORTH LAND DISPUTE TRIBUNAL CAUSE NO. TC/223/100/010

AND

IN THE MATTER OF THE ESTATE OF WAUNTAI OLE SAIRE (DECEASED)

PARMUAT OLOISHORUA KORE....................APPLICANT

VERSUS

PHILIP SANTAMO WAUNTAI..................................1ST RESPONDENT

WAUNTAI OLE SAIRE.......................................2ND RESPONDENT

NISA OLE WUANTAI........................................3RD RESPONDENT

(SUED ON THEIR BEHALF AND AS LEGAL REPRESENTATIVES OF THE ESTATE OF THE LATE WAUNTAI OLE SAIRE)

KAJIADO RESIDENT MAGISTRATE....................4TH RESPONDENT

THE HON. ATTORNEY GENERAL......................5TH RESPONDENT

AND

BENSON KASIOKI, CATHERINE KINOTI AND

JOHN NAMWASO........................................INTERESTED PARTIES

RULING

The Applicant obtained ex-parte injunctive orders following his application dated 20th May 2014. On being served the application and orders granted, the 1st, 2nd and 3rd Respondents filed their response and before the said application was heard inter-partes, they filed an application dated 16th June 2014. This court, on 8th July 2014 directed that both applications be disposed off at once.

This application is brought under Order 40 Rule 1(a) 2(1) & (2), Order 51 Rule 1 & 2 of the Civil Procedure Rules, Sections 1A, 1B & 63 (e) of the Civil Procedure Act, Sections 21(1), 24, 25 and 26(1) of the Land Registration Act, 2012 and Article 40 of the Constitution.When the same came up for ex-parte hearing on 22nd May 2014, the court certified the application urgent and granted prayers 2, 3 and 4 therein. The remaining orders sought by the Applicant are as follows:

Pending the hearing of the application, the court be pleased to issue a temporary mandatory injunction requiring the 1st, 2nd and 3rd Respondents, open the public roads that they have closed by digging trenches between their land parcel number KJD/OCHORO-ONYORE/88 and the Applicant’s parcels of land title No. KJD/OLCHORO-ONYORE /8767, KJD/OLCHORO-ONYORE 16463, KJD/ OLCHORO-ONYORE 20463, KJD/ OLCHORO-ONYORE/20464, and KJD/ OLCHORO-ONYORE/20466 and in default thereof, the OCS Ngong Police Station be authorized and ordered, directed and commanded to re-open the closed public roads by filling the dug trenches.

Pending the hearing and determination of this originating summons, the court be pleased to issue temporary injunction restraining the 1st, 2nd and 3rd Respondents, their servants, agents and employees or anybody acting under their instructions from entering, occupying, digging trenches, destroying beacons or any other boundary marks or otherwise committing any and all forms of waste upon and/or dealing with the Applicant’s parcels of land title No. KJD/OLCHORO-ONYORE/8767, KJD/OLCHORO-ONYORE 16463, KJD/OLCHORO-ONYORE 20463, KJD/OLCHORO-ONYORE/20464, and KJD/OLCHORO-ONYORE/20466.

Pending the hearing and determination of the Originating Summons the court be pleased to issue a temporary injunction restraining the District Surveyor, Kajiado County, his subordinates, servants and/or agents from entering upon, surveying, resurveying, mutating or otherwise dealing prejudicially with all those parcels of land title KJD/OLCHORO-ONYORE/8767, KJD/OLCHORO-ONYORE 16463, KJD/OLCHORO-ONYORE 20463, KJD/OLCHORO-ONYORE/20464, and KJD/OLCHORO-ONYORE/20466.

Pending the hearing and determination of the Originating Summons the court be pleased to issue a temporary injunction restraining the District Land Registrar, Kajiado, his subordinates, servants and/or agents from effecting any alterations, cancellation or in any manner dealing with the registers in respect of all those parcels of land title KJD/ OLCHORO-ONYORE/8767, KJD/ OLCHORO-ONYORE 16463, KJD/ OLCHORO-ONYORE 20463,KJD/OLCHORO-ONYORE/20464,andKJD/OLCHORO ONYORE/20466.

That mandatory injunction do issue directed against the 1st, 2nd and 3rd Respondents, their servants and/or agents to forthwith move out of all those parcels of land titles KJD/OLCHORO-ONYORE/8767, KJD/OLCHORO-ONYORE 16463, KJD/OLCHORO-ONYORE 20463, KJD/OLCHORO-ONYORE/ 20464, and KJD/OLCHORO-ONYORE/20466 and open or be open the public roads they have closed forthwith and in default thereof, the OCS Ngong Police Station be authorized, directed and commanded to eject and remove the 1st, 2nd and 3rd Respondents from the Applicant’s parcels of land.

Costs of the application be borne by the Respondents.

The application is premised on the grounds outlined on the face of the application and supported by an affidavit sworn by the Applicant on 20th May, 2014. He deposed that he is the registered owner of the parcels of land KJD /OLCHORO-ONYORE/8767,KJD/OLCHORO-ONYORE16463,KJD/OLCHORO-ONYORE 20463, KJD/ OLCHORO-ONYORE/20464, and KJD/OLCHORO-ONYORE/20466 (hereinafter the suit properties). The deponent gave the chronology of events leading to the institution of this suit as follows. In 2009, he made a report of trespass of Plot No. 4283 by his neighbor Wauntai Ole Saire (deceased) to the Chairman of the defunct Land Dispute Tribunal, Kajiado North. Thereafter, that the Chairman recorded the dispute with the tribunal as No. TC/223/100/010. However, that the deceased passed away on 8th December 2009 before the dispute could be heard. Nonetheless, that the 1st, 2nd and 3rd Respondents proceeded with the hearing at the Tribunal in his absence and a ruling delivered on 8th March 2011. Subsequently, the ruling was forwarded to the 4th Respondent for adoption as Judgment of the court on 26th May 2011. On reaching the court, the Learned Magistrate rejected the award on the grounds that the proceedings were a nullity as the Respondent therein was deceased at the time of proceedings. The said proceedings were returned to the Chairman of the Tribunal when after the Magistrates’ Court’s file was declared closed.

The deponent states that the 1st, 2nd and 3rd Respondents through their application dated 12th August 2013, sought orders in the Magistrates’ Court that, first, they be substituted in place of their late father and be granted leave to prosecute Kajiado PM LDT Cause No. 69 of 2011, and secondly, the said court be pleased to read and adopt the Tribunal’s award. The Learned Magistrate directed both parties to file written submissions when the matter came up for hearing on 11th February 2014. Thereafter, that on 9th May 2014, the Learned Magistrate abandoned the application dated 12th August 2013, but instead, and without taking heed of the earlier decision declaring the tribunal’s award null and void, adopted the same as the Judgment of the court. Subsequently on 13th May 2014, the 1st, 2nd and 3rd Respondents extracted the order and served it upon the District Surveyor who proceeded to the ground on 19th May 2014, and put beacons with the intention of surveying, sub-dividing and mutating the suit properties, which were not subject of the dispute at the Tribunal. The deponent states that the District Land Surveyor is enforcing an order of the court emanating from the ruling dated 9th May 2014, whereas the Tribunal’s decision was null and void and therefore cannot be executed as is. In that regard the deponent urged the court to allow the application deposing that the same would only be fair, just and reasonable.

1st, 2nd and 3rd Respondents’ Response

The 1st Respondent on behalf of the 2nd and 3rd Respondents filed a Replying Affidavit on 4/6/2014 wherein he deposed that Kajiado/Olchoro – Onyore/80 was sub-divided into a smaller portion resulting to Kajiado/Olchoro – Onyore/4283 which abuts Kajiado/Olchoro – Onyore/88. Further that plot No. 4283 as registered in the name of the Applicants and whilst plot No. 88 registered under the name of their late father. It is his disposition that their late father and the Applicant had disputes over plot No. 4283 and plot No. 88 when the Applicant initiated proceedings in the Land Dispute Tribunal. However, that they were served with the summons since their late father had passed away ion 8/12/2009, way before the commencement of the tribunal proceedings. Further that the notice was served upon the Respondents as trustees of the deceased in whose name the suit property was registered. The deponent states that the dispute at the tribunal was that the Applicant alleged that the deceased, registered owner of Plot No. 88 had encroached upon his land Plot No. 4283 excised from Plot No. 80. That upon hearing the parties, surveyors and members of the community, the tribunal ruled that out of the disputed land, the deceased was entitled to 20 acres whereas the Applicant was entitled to 8 acres.

It is deposed that after the tribunal made its award, the Respondents jointly petitioned the High Court at Machakos, Succession Cause No. 1088 of 2012, where they were appointed as administrators of the deceased’s estate through the Grant of letters of Administration Intestate dated 10th May 2013. Subsequently, that they filed in the Magistrates’ Court, Kajiado LDT Misc. No. 69 of 2011, the tribunal’s award for purposes of adoption as Judgment of the Court. However, that before the adoption, the Applicant filed an application dated 6th January 2014 seeking orders that a public utility road be carved out between Plots No, 80 and 88.

It is the 1st Respondent’s disposition that the Learned Magistrate Hon. Temu declined to rule on the application instead directed the parties to commence the proceedings at the tribunal afresh on the basis that the Respondent therein was deceased in the course of the tribunal proceedings.  It is disposed that the Applicant’s change of mind appears to be driven by his loss at the tribunal since he was aware of the deceased’s demise before the start of the proceedings at the tribunal which resulted to the Respondents involvement. The 1st Respondent deposes that on 12th August 2013, they moved the Magistrates’ Court to be substituted as Respondents in place of the deceased, which application was opposed by the Applicant. The Learned Magistrate adopted the award of the tribunal as Judgment of the Court on 13th May 2013 which was served upon the District Surveyor who proceeded to the site to execute the order.

It is deposed by the 1st Respondent that the mutation shows that Plot No. 80 belonging to the Applicant was sub-divided and gave rise to Plots No. 4283, 4284, 4285, 4286, 4287, 4288, 4289, 4290 and a road. He referred to the Applicant’s annexures marked “PO9” being copies of titles of Parcels KJD/OLCHORO-ONYORE 8767, 16463, 20463, 20464, 20466, and deposed that the total acreage is much larger than that of Plot No. 80 which gave rise to them. In that regard, the 1st Respondent suggested that the said portions must have been secured fraudulently and their likely source could be plot No. 88.

He also deposed that none of the portions aforementioned are sub-divisions of 4283. Consequently, he deposed that the Applicant had come to court with unclean hands by consistently blocking the public road and that the order he is enjoying were obtained with material non-disclosure. The deponent stated that the District Land Surveyor effectively completed his work on 19th May 2014, as per the Judgment of the lower court emanating from the tribunal’s award before it was served with the ex-parte orders of this court on 22nd May 2014. The deponent urged the court to decline the extension of the ex-parte orders since its effect is to deny the public the use of the road.

1st, 2nd and 3rd Respondent’s application dated 16th June 2014

The Respondents brought this application under Order 40 Rules 1, 2, and 4 of the Civil Procedure Rules and Section 3A and 63 (e) of the Civil Procedure Act, seeking the following orders:

The Court does order Benson Kasioki, Catherine Kinoti and John Namwaso to be joined in the Originating Summons as Interested Parties.

The Court does order the Applicant, Benson Kasioki, Catherine Kinoti and John Namwaso be restrained by an order of injunction against them, their agents, servants and/or employees from trespassing into Kajiado/Olchoro – Onyore/80 (a portion sub-divided therefrom known as Kajiado/Olchoro – Onyore/4283) and Kajiado/Olchoro–Onyore/88and/or their continuous threats directed at the 1st, 2nd, and 3rd Respondents, their, agents, servants and/or employees.

The District Surveyor Kajiado be ordered to forthwith produce to the 1st, 2nd and 3rd Respondents a copy of the report resulting from the re-survey of the 19/5/2014 upon Kajiado/Olchoro – Onyore/80 (a portion sub-divided therefrom known as Kajiado/Olchoro – Onyore/4283) and Kajiado/Olchoro – Onyore/88.

The Applicant be ordered to remove the erected wire fence from the public access road between Kajiado / Olchoro – Onyore/80 (a portion sub-divided therefrom known as Kajiado/Olchoro–Onyore/4283) and Kajiado / Olchoro – Onyore/88.

The Officer in Charge of Birika AP Post be ordered to supervise the enforcement of Order No. 5 above.

Costs of the application be awarded to the Respondents.

The application is premise on grounds outlined on the face of the application and supported by an affidavit sworn by the 1st Respondent. He deposes that Kajiado/Olchoro – Onyore/80 was sub-divided into a smaller portion resulting to Kajiado/Olchoro–Onyore/4283 which abuts Kajiado/Olchoro – Onyore /88. Further that plot No. 4283 as registered in the name of the Applicant and whilst plot No. 88 registered under the name of their late father. It is his disposition that their late father and the Applicant had disputes over plot No. 4283 and plot No. 88 when the Applicant initiated proceedings in the Land Dispute Tribunal. Upon hearing the parties, surveyors and the Land Adjudication Committee, the 1st Respondent deposes that the Tribunal unanimously awarded the Respondents 20 acres out of the disputed portion whereas the Applicant got 8 acres. It is his disposition that the award of the tribunal was filed at the Senior Resident Magistrate’s Court, Kajiado Misc. No. 69 of 2011, which award was adopted as Judgment of the Court on 13th May 2013. The 1st Respondent deposes that the said Judgment has not been challenged on appeal or set aside. It is disposed that the Judgment was served upon the District Land Surveyor, Kajiado who issued a notice to the Area Chief that he would be visiting the disputed land on 19th May 2014 to implement the Judgment. On the said date, the surveyor proceeded on site and undertook the re-survey by dividing the sand land to two portions of 20 and 8 acres whilst carving out a public road between the original Kajiado/Olchoro–Onyore/80 and Kajiado/Olchoro–Onyore/ 88.

The 1st Respondent deposes that the intended interested parties are police officers who have been trespassing on the suit land threatening the Respondents for maintaining the public road, and have together with the Applicant blocked the said road in total disregard of the orders of the court. The deponent states that the ex-parte orders granted by this court do not direct the Applicant and the Interested Parties to erect a fence with the effect of blocking the community from accessing the public utility. He contends that the continued misrepresentation of the said orders is causing tension with a likelihood of a breach of law and order. Further, that it will occasion the Respondents and the general public great prejudice. To that end, the deponent stated that they had made reports at Birika Administration Police Post. The deponent also states that the Respondents have not been able to secure a copy of the re-survey report alleging that Interested Parties have issued threats to the District Surveyor.

In support of the application, the Respondents annexed copies of the proceedings at the Land Dispute Tribunal, an order of the Lower Court adopting the Tribunal’s award issued on 13th July 2014. They also annexed a copy of the notice issued to the Area Chief by the District Surveyor dated 13th  May 2014, photographs showing the disputed plot and the public road, and Occurrence Book Numbers showing reports made by the Respondents to the Police with regard to the Applicant and Interested Parties’ action of blocking access of the public road.

The Applicant swore a Replying Affidavit on 2nd July 2014, in opposition of the Respondents’ application. He deposed that his Originating Summons and Notice of Motion application both dated 20th May 2014, is in respect of parcel number Kajiado /Olchoro-Onyore/20463, Kajiado/Olchoro-Onyore /20464 and Kajiado/ Olchoro-Onyore/20466 and that he is the registered owner thereof. The Applicant deposed that Kajiado/Olchoro-Onyore/4283 is no longer in existence and therefore incapable of being trespassed onto. Further that the said plot No. 4283 is not subject of neither the originating summons nor the application dated 20th May 2014, and therefore cannot be introduced through the back door. Nevertheless, the Applicant deposes, that he was the registered owner of Plot No. 4283 when it was still in existence, a fact that is acknowledged by the Respondents, and therefore that he cannot be restrained from enjoying the use of the property, if it were in existence to date. It is disposed by the Applicant that the orders sought by the Respondents are misplaced as they are in reference to different parcels of land from the subject matter of the suit and that the ex-parte orders issued by the court on 22nd May 2014 did not restrain him in any way from dealing with his property.

The Applicant referred to the Order of Hon. Temu dated 30th August 2011, annexed to the Respondent’s affidavit marked “PW3” which declared the tribunal’s proceedings null and void, and deposed that the said order had not been set aside nor varied. He deposed further that the Respondents herein were not party to the Tribunal proceedings and subsequently the Magistrate’s Court as they obtained letters of administration on 22nd April 2013, and have to date not done substitution. Consequently, that the Respondents’ reliance on the Land Dispute Tribunal award and the Judgment of the Magistrate’s Court is of no consequence and the same is null and void ab initio. The Applicant deposed that the interested parties are Police Officers whom he requested to implement the ex-parte orders of the court in respect of Plots No. 16463, 20463, 20464 and 20466 and have accordingly assisted in enforcing the same.

The Office of the Attorney General on behalf of the 3rd and 4th Respondents filed Grounds of Opposition dated 6th August 2014. They averred that the application was fatally defective and bad in law as it has no cause of action as against the intended Interested Parties, and therefore that the orders sought against them are incompetent.

Both applications were canvassed by way of written submissions. Eric Ntabo & Co. Advocates for the Applicant filed submissions dated 27th July 2014 wherein counsel submitted that the Applicant had established a prima facie case against the Respondents with high chances of success and therefore deserving of the injunctive orders sought. In respect to the 1st, 2nd and 3rd Respondents’ application, counsel submitted that the same was intended to delay the expeditious disposal of the suit. Further that the orders sought would amount to a legal absurdity because the Plots No. 88 and 4283, subject matter of the Respondents’ application are not in existence. In any event, counsel submitted, that the Respondents have not established any grounds of obtaining injunctive orders against a registered owner. It was submitted that the application did not meet the threshold as per the case of Giella v Cassman Brown & Co. Ltd (1973) EA 358

Counsel submitted on the technical points of capacity of the 1st, 2nd and 3rd Respondents’ capacity to defend the proceedings at the tribunal and the extent of the tribunal’s mandate as follows: It was submitted that the law of succession and rules of procedure are express that upon the demise of a litigant, his legal representatives must obtain letters of administration and apply within one year from the date of demise to be substituted to act on behalf of the deceased person, failing which the proceedings would be a nullity. Counsel also submitted on the issue of the tribunal’s jurisdiction that it overstepped its jurisdiction by ordering that 20 acres be excised from the Applicant’s land Plot No. 4283. Counsel pointed out to the Court the provisions of Section 3 of the Land Dispute Tribunal Act (now repealed) which spells out the tribunal’s jurisdiction, submitting that the tribunal’s award substantially affected the Applicant’s title.

On the foregoing submissions, counsel relied on the case of Macfoy v United Africa Co. Ltd (1961) 2 All ER 1169 at 1172,where the Court held:

Where an act is a nullity, it is trite Law that it is void and if an act is void, then it is in law a nullity as it is not only bad but incurably bad and there is no need for an order of the court to set it aside, though some time it is convenient to have the court declare it to be so...

A.I. Onyango & Co. Advocates for the 1st, 2nd and 3rd Respondents filed submissions dated 16th September 2014 wherein counsel submitted that the Respondents’ application is meritorious and ought to be allowed as it merely sought to enforce the failure to abide by the award of the Tribunal and the subsequent adoption of the award as Judgment by the Magistrate’s Court. In respect to the Applicant’s application, counsel submitted that the originating Summons is incurably defective as the same cannot be equalized to an appeal of the award adopted as Judgment by the Magistrate’s Court. Counsel submitted that the current proceedings are an abuse of the Court process in view of the subsisting Judgment which has not been set aside or challenged on appeal. Furthermore, counsel submitted that the nature of the dispute fell within the jurisdiction of the Land Dispute Tribunal.

Joyce C. Koech, Litigation Counsel at the office of the Attorney General filed submissions dated 6th August 2014 on behalf of the 4th and 5th Respondents and the Intended Interested Parties. Counsel pointed out that they were not opposed to the Applicant’s application dated 20th May 2014. In respect to the 1st, 2nd and 3rd Respondents’ application, counsel submitted that the same was an abuse of the court process its intent being to divert the court from determining the real issues at hand. It was submitted that the intended Interested Parties are police officers charged with the responsibility of maintaining law and order and therefore have no interest in the suit properties. Further that being enforcement officers, the law allows for them to access private property to discharge their duties. Consequently, that there would be no purpose for their joinder to the proceedings.

Prayer 3 - Joinder

The Respondents herein seek an order that Benson Kasioki, Catherine Kinoti and John Namwaso be joined to the proceedings on the basis that they have been trespassing on the disputed portion and together with the Applicant they have blocked access of the said portion which is a public road. In response, the Attorney General on behalf of the intended Interested Parties submits that they are police officers charged with the responsibility of maintaining law and order and that being law enforcement officers, the law allows them access to private property to discharge their duties. Order 1 Rule 10(2) of the Civil Procedure Rules, gives the court discretion, at any stage of the proceedings and on such terms as may be just order the joinder of any person whose presence before court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit.

The question is whether the presence of the said Police Officers is necessary to enable the court effectually and completely determine the dispute. It is pointed by the Attorney General that the said officers have no interest in the matter.  The Applicant deposed that the said officers were engaged to assist in enforcing the ex-parte court orders granted by this Court on 22nd May 2014. On perusal of the said order, I do note that this Court did not direct that the orders be enforced by the help of Police Officers. However, their involvement in effecting the said orders cannot form a basis for their joinder as their presence before court will not assist the court in determining the dispute between the parties. In that regard, this prayer is declined.

Ruling on Prayers of Injunction by the Applicant and Respondent

The foregoing narrative shows that the dispute between the parties is over the portions of their respective parcels of land and an access road that divides the said portions. The Applicant alleges that the Respondents’ late father encroached on his parcel of land Plot No. 80 which borders Plot No. 88 belonging to the Respondents. It also emerges that the Applicant has since sub-divided Plot No. 80 giving rise to Plots No. 4283, 4284, 4285, 4286, 4287, 4288, 4289, 4290 and a road. It is alleged by the Respondents that the parcels of land, Plots No. 8767, 16463, 20463, 20464, and 20466, subject matter of the suit herein, first, do not emanate from Plot No. 4283 and secondly, their acreage is more than that of Plot No. 80 which gave rise to the said parcels. Consequently, that the only explanation is that the Applicant has fraudulently acquired their additional acreage from Plot No. 88. Both parties seek injunction orders to the effect that the access road between their properties be open and further orders to restrain either part from interfering with their respective properties.

This court is unable to make any determination as to whether the either party has encroached onto the other’s property. It is also unclear whether the access road is clearly demarcated as both parties accuse the other of blocking it. It is therefore my finding that none of the parties have established a prima facie case. It is also noteworthy that this is not one of the clear cases that ought to be determined at once to warrant the court to grant mandatory orders of injunction. See the case of Kenya Breweries Ltd and another v Washington Okeyo (2002) 1 E.A. 109.

These findings notwithstanding, the court is cognizant of the need to preserve the status quo to enable a just disposal of the suit. Indeed the general principle in circumstances where facts are highly disputed is that status quo be maintained until the dispute has been decided on trial. See the holding of the Court of Appeal in Ougo & Another v Otieno (1987) KLR 1

Lengthy depositions and submissions have been made as to the relevance and weight of the award of the Land Disputes Tribunal – Kajiado North. In my view however, the real dispute between the parties is the boundary between their respective properties. In view of section 18(2) & (3) of the Land Registration Act, this Court is divested of jurisdiction to entertain any action or proceedings relating to a dispute as to the boundaries of the registered land. Section 18(2) & (3) reads:

(2) The court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section.

(3) Except where, it is noted in the register that the boundaries of a parcel have been fixed, the Registrar may, in any proceedings concerning the parcel, receive such evidence as to its boundaries and situation as may be necessary:

Provided that where all the boundaries are defined undersection 19(3), the determination of the position of any uncertain boundary shall be done as stipulated in the Survey Act, (Cap. 299)(Emphasis Mine)

As provided by Section 18(2) and (3) of the Land Registration Act, the court directs the parties as follows:

Pending the hearing and determination of the Originating Summons, there shall  be maintenance of  status quo to the effect that no party shall interfere with each other’s properties as well as the access road as currently delineated.

The matter to be mentioned before the Registrar of Lands Kajiado County or the Registrar whose jurisdiction the properties in dispute lies.

The Registrar of Lands to furnish a report to this court within 120 days from the date hereof in respect to the boundary dispute including the access road and as to the status of KJD/ OCHORO-ONYORE/80 and KJD/OCHORO-ONYORE/88; the status and origin of Plots No. 4283, 4284, 4285, 4286, 4287, 4288, 4289, and 4290; as well as the origin of Plots No. 8767, 16463, 20463, 20464, and 20466.

Costs of the application be in the cause.

Dated, Signed and Delivered this 9th day of March 2015

L.N. GACHERU

JUDGE

In the Presence of:-

None attendance for  the Applicant/ Plaintiff though served.

M/s Githu holding brief Onyango for the 1st 2nd  3rd 4th and 5th Respondents

Kamau:  Court Clerk

Court:

Ruling Read in Open Court in the presence of the above Advocate.

L N GACHERU

JUDGE