Fatuma Mohammed Ali v Boru Dika & 2 others [2017] KEELC 760 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Admissibility of the County Surveyor's Report
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.
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.
Status of a private report filed without leave
A report filed by a party without the authority or order of the court is inadmissible and must be expunged from the record.
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.
Whether a further scene visit was necessary
No further scene visit was ordered because the County Surveyor's report captures the purpose of the scene visit.
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.
Legal principles established
#- 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
#- 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.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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.