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ELCOtherNot stated in judgment· [2017] KEELC 632 (KLR)

Fatuma Mohammed Ali v Boru Dika & 2 others [2017] KEELC 632 (KLR)

Environment and Land Court
6 December 2017
LML. N. Mbugua
420 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a ruling-style judgment of the Environment and Land Court at Meru (L. N. Mbugua, ELC Judge) dealing with surveyor reports arising from a land dispute over parcels in Isiolo. On 24/4/2017 the court had directed the Isiolo County Surveyor to file a report on the suit land, and on 24/7/2017 it directed a scene visit at which the County Surveyor was to point out the beacons on the disputed parcels. The scene visit proved contentious: the plaintiff's counsel said it was not properly done because defence counsel objected to Mr Wachira pointing out the beacons, while defence counsel said the County Surveyor was not available, so effectively no scene visit took place. The court held that the County Surveyor's report, prepared by Peter K. Wachira 'for the County Surveyor', was prepared on behalf of that office pursuant to the order of 24/4/2017 and was therefore admissible. The Deputy Executive Officer's report, prepared under direction No. 5 of the order of 24/7/2017, was also admitted as part of the record. However, the report filed on 21/10/2017 by Kabiru & Co. Advocates - apparently from a private surveyor - was expunged because no party had requested a private surveyor and the court had made no order authorising such a report. The court ordered that Mr Wachira be cross-examined on his report, and declined to order a further scene visit since the County Surveyor's report already captured its purpose. No costs order was made and no authorities were cited.

Key legal issues

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01

Admissibility of the County Surveyor's report

Holding

The report is admissible because it was prepared pursuant to the court order of 24/4/2017 and authored on behalf of the office of the County Surveyor

Reasoning

The court noted that the report was prepared by Peter K. Wachira 'for the County Surveyor', meaning the person who prepared it acted on behalf of that office. Since the directions for the report were made pursuant to a court order, the report was properly before the court and admissible, notwithstanding objections arising from the aborted scene visit.

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02

Status of the report filed by Kabiru & Co. Advocates

Holding

The report is expunged from the record as it was filed without the authority or order of the court

Reasoning

The directions made in the matter were in furtherance of requests made by the parties' advocates. The defence had sought a scene visit and cross-examination of the County Surveyor on his report, but no request was made for a private surveyor. Consequently, no order authorised a report from a private surveyor, and the report filed on 21/10/2017 was irregular.

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03

Whether a further scene visit was necessary

Holding

No further scene visit was ordered

Reasoning

The court reasoned that the purpose of the scene visit - to have the beacons of the disputed parcels pointed out - was already captured in the County Surveyor's report, which the author would be cross-examined on. A further visit would therefore be unnecessary.

p. 2

Legal principles established

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  • A report prepared by an officer on behalf of the office of the County Surveyor pursuant to a court order is admissible in evidence
  • A report filed without the authority or order of the court may be expunged from the record

Court orders

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  1. 1.The report filed on 21/10/2017 by Kabiru & Co. Advocates is expunged from the records as it was filed without the authority or order of the court
  2. 2.Mr. Wachira, the author of the report filed on 27/6/2017 for the County Surveyor, is to be cross-examined on the report
  3. 3.There will be no further scene visit as the County Surveyor's report captures the purpose of the scene visit
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit land (court order of 24/4/2017 and directions of 24/7/2017)

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, "Fatuma Mohammed Ali v Boru Dika & 2 others [2017] KEELC 632 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/632/eng@2017-12-06

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