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ELCOtherCivil Suit No 25 of 2013· [2017] KEELC 760 (KLR)

Fatuma Mohammed Ali v Boru Dika & 2 others [2017] KEELC 760 (KLR)

Environment and Land Court
6 December 2017
418 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled a surveyor's report filed without a court order must be struck out, while official survey reports are admissible.

What this practically means

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Executive summary

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This is a ruling on directions by the Environment and Land Court at Meru (L. N. Mbugua, ELC Judge) in a pending land dispute over parcels in Isiolo, arising after a disputed scene visit. The court had on 24/4/2017 directed the Isiolo County Surveyor to file a report on the suit land and on 24/7/2017 directed a scene visit at which the surveyor was to point out the beacons. The visit proved contentious: the plaintiff reported that the County Surveyor was prevented by defence counsel from pointing out the beacons, while the defence maintained the surveyor was unavailable, so in effect no scene visit occurred. The court held that the report of 27/6/2017, prepared by Peter K. Wachira 'for the County Surveyor', was made on behalf of the County Surveyor's office and was therefore admissible pursuant to the order of 24/4/2017. The report of the Deputy Executive Officer prepared under direction No. 5 of the 24/7/2017 order was also admitted as part of the record. Because the directions had been made at the parties' request - particularly the defence, which sought the scene visit and cross-examination - and no party had asked for a private surveyor, the report filed on 21/10/2017 by Kabiru & Co. Advocates was expunged as filed without court authority. The court directed cross-examination of Mr. Wachira on his report and declined to order a further scene visit, holding that the County Surveyor's report captured its purpose. No costs order was made.

Key legal issues

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01

Admissibility of the County Surveyor's Report

Holding

The report is admissible because it was prepared by Peter K. Wachira on behalf of the County Surveyor's office pursuant to the court's order of 24/4/2017.

Reasoning

The report was prepared under a court direction for the Isiolo County Surveyor to file a report on the suit land. Although signed by a named individual, it was prepared on behalf of the office of the County Surveyor. The court treated the office, not the individual, as the author for admissibility purposes, and admitted the report as part of the record.

p. 1
02

Status of a private report filed without leave

Holding

A report filed by a party without the authority or order of the court is inadmissible and must be expunged from the record.

Reasoning

The directions for a scene visit and surveyor's report were made at the request of the parties, in particular the defence, which had sought the scene visit and cross-examination of the County Surveyor. No party requested a private surveyor and no order was made for a private report; the defence report filed on 21/10/2017 therefore had no procedural basis and was expunged.

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03

Whether a further scene visit was necessary

Holding

No further scene visit was ordered because the County Surveyor's report captures the purpose of the scene visit.

Reasoning

The scene visit of 24/7/2017 was disputed: the plaintiff said the County Surveyor was prevented from pointing out beacons, while the defence said the surveyor was unavailable. The court resolved the impasse by relying on the County Surveyor's report as capturing the visit's purpose and instead directing cross-examination of its author, rather than redoing the visit.

p. 2

Legal principles established

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  • A report prepared by a named officer on behalf of the County Surveyor's office is admissible as the product of that office pursuant to a court order
  • A party's report filed without the authority or order of the court will 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 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 that 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
Inherent directions powers of the Environment and Land Court over the suit land (directions orders of 24/4/2017 and 24/7/2017); specific provision not stated

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 760 (KLR)", Case Analysis (2017). Civil Suit No 25 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/760/eng@2017-12-06

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