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ELCAllowedNot stated in the judgment· [2024] KEELC 6963 (KLR)

Olepere & another v Pama Estate Limited & another (Environment & Land Case 180 of 2018) [2024] KEELC 6963 (KLR)

Environment and Land Court
17 October 2024
1,037 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court set aside a disputed boundary survey report and ordered a fresh, independent survey with all parties present.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kajiado (L. Komingoi J) determined a Notice of Motion dated 19th February 2024 brought by the Defendants under Section 3 and 13 of the Land and Environment Act and Article 159(2) of the Constitution. The Defendants sought to set aside or expunge a Survey Report dated 3rd August 2023 prepared by George N. Nyambane, Incharge Ngong Survey Office, and to have an independent survey of the suit properties Ngong/Ngong/36813, 36814 and 16205 conducted by another District Land Surveyor, in the presence of the Land Registrar, the parties and their independent surveyors, with OCS Rongai Station ensuring law and order. The application was supported by an affidavit of Paul Kamau Mani, a director of the 1st Defendant, and opposed by Mary Theresa Olepere, the 1st Plaintiff, through a replying affidavit. The court had earlier, on 18th July 2023, ordered the Land Registrar to ascertain the boundaries, and a report was submitted. The Defendants alleged the survey was influenced by the Plaintiff's surveyor and that they were not afforded an equal opportunity to participate. The Plaintiffs maintained the survey followed due process under Section 21 of the Survey Act. The court found the Defendants raised pertinent credibility issues such that the report could not be relied upon, and that no prejudice would be occasioned by repeating the exercise. The application was allowed in its entirety, with the costs of the survey and of the application borne by the Defendants.

Key legal issues

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01

Whether the Notice of Motion seeking to set aside the survey report and order an independent survey is merited

Holding

The application was allowed; the court found the defendants raised pertinent credibility issues regarding the report and that no prejudice would be occasioned to the plaintiffs by repeating the exercise

Reasoning

The court noted the prior order of 18th July 2023 directing the Land Registrar to ascertain boundaries, and that a report had been submitted. The defendants were dissatisfied, alleging bias of the Incharge Ngong Survey Office. The court found the credibility concerns pertinent, meaning the report could not be relied upon. Since the matter was at its tail end, the court found repeating the survey would cause no prejudice to the plaintiffs, who would be present to raise concerns, and allowed the application on terms.

p. 3

Legal principles established

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  • Where credible questions are raised about the credibility of a court-ordered survey report, the report cannot be relied upon and the survey may be repeated where no prejudice will be occasioned

Court orders

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  1. 1.The Survey Report dated 3rd August 2023 by George N. Nyambane – Incharge Ngong Survey Office is set aside
  2. 2.An independent survey be carried out in respect of Ngong/Ngong/36813, 36814 and 16205 by a District Land Surveyor Registrar other than George N. Nyambane, in the presence of the Land Registrar, the parties with their independent surveyors of choice, and a Report be submitted to the Court within 30 days
  3. 3.The OCS – Rongai Station to ensure maintenance of law and order during the survey
  4. 4.The Defendants shall cater for the costs of the exercise
  5. 5.Costs of the Application be borne by the Defendants
Jurisdiction invoked
Section 3 and 13 of the Land and Environment Act, Article 159(2) of the Constitution and all other enabling provisions of law

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Olepere & another v Pama Estate Limited & another (Environment & Land Case 180 of 2018) [2024] KEELC 6963 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6963/eng@2024-10-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.