This ruling is in respect of the Notice of Motion application dated 7th November, 2025, expressed to be brought pursuant to the provisions of sections 1A, 1B, and 3A of the Civil Procedure Act, Order 40 Rules 1, 2 & 3, and Order 51 of the Civil Procedure Rules, 2010.
The application seeks orders that;
(a) The court issues orders compelling the Respondent Joseph Aoko to allow and participate in a joint survey of the parcel of land known as L.R. NO.24624, or also referred to in the allotment letter as KISUMU MUNICIPALITY PLAN NO. N9/93/15 measuring approximately 2.005 Hectares, together with the Applicant’s duly appointed surveyors from the Kisumu/District Surveyor’s office and the neighboring proprietors.
(b) The Officer Commanding Station (OCS) Kisumu East Police Station be and is hereby directed to provide security and ensure maintenance of peace and order during the said exercise.
(c) The costs of the application be provided for.
The application was supported by the contents of the Supporting Affidavit sworn by Rev. Fr. Vincent Ouma on 14th November, 2025.
The application was opposed vide the Replying Affidavit sworn by the Respondent on 15th February, 2026, and the annexures thereto.
The Respondent’s case is that a survey cannot be carried out without a map and that the Plaintiff does not have any maps. That no maps exist for this matter, as there is an historical injustice case for which the National Land Commission formed a Task Force Committee, and hence no cases ought to continue in court in respect of the area covered by the Task Force. The respondent contended further that the case herein is a boundary dispute and not a case of trespass to land, and that the court lacks jurisdiction to entertain the matter. He averred that he was ready and willing if the Applicant could provide a map for the area.
In addition to the Replying Affidavit, the Respondent filed a Notice of Preliminary Objection dated 15th February, 2026, to the effect that this court lacks jurisdiction to hear and determine the application. I have considered the objection in light of the Plaint dated 11th November 2024. I find nothing in the plaint to suggest that the parties herein own parcels of land that share a common boundary. The claim cause of action disclosed in the plaint is that of trespass to land for which the plaintiff applicant seeks orders, including orders of permanent injunction and eviction. The preliminary objection raised, although raising the issue of jurisdiction, which is a pure point of law, is not one that flows or is discernible from the pleadings so far filed.
The application was argued orally on 25/2/2026.
I have considered the application, the Replying Affidavit, and the submissions made. The applicant contends that the Respondent has been hesitant and hostile to having the survey done.
It has not been demonstrated that the Respondent will suffer any prejudice if the survey is conducted. The respondent’s main issue or objection to the survey is that there is no map available in respect of the area, or that the applicant has no map for the area.
Het indicated that he is ready and willing to participate in a joint survey if the map can be made available. This objection is, however, not sustainable as the Respondent can obtain a copy of the map he requires from the survey of Kenya.
I find that the application has merit and allow it as follows:-
1) The preliminary objection is dismissed.
2) The County Surveyor, Kisumu, is hereby directed to visit the suit land parcel No. L.R. No.246224, also referred to as KISUMU/MUNICIPALITY PLAN NO. N9/93/15 and survey the same to establish whether or not the Respondent has trespassed there onto and file a report in court within 60 days hereof.
3) Each party is at liberty to attend the exercise with an independent surveyor of its own choice.
4) The Plaintiff shall bear the cost of the survey exercise.
5) The Officer Commanding Station (OCS), Gita Police Station, shall provide security during the survey exercise.
6) Each party shall bear its own costs of the application.
Orders accordingly.
Ruling dated and signed at Kisumu, read this 28th day of May, 2026, virtually, through Microsoft Teams online application.
E. ASATI,
JUDGE.
In the presence of
Atika.. Court Assistant
Marucha for the Plaintiff/Applicant
Orego for Defendant/Respondent.