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ELCAllowed· [2017] KEELC 922 (KLR)

Bernard Mbuti King’oroti v Njagi Gikunju & another [2017] KEELC 922 (KLR)

Environment and Land Court
23 November 2017
905 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed a site visit by the court's Deputy Registrar to verify a land buyer's actual occupation in an adverse possession dispute.

What this practically means

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Executive summary

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In an adverse possession suit seeking registration of the Plaintiff as proprietor of sub-divisions of Title No. Mbeti/Gachuriri/30 (parcels Mbeti/Gachuriri/1831, 1833, 1834 and 1835), the Plaintiff moved the Environment and Land Court at Embu by notice of motion dated 22nd September 2017 under section 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules. He sought an order that the Deputy Registrar visit the suit parcels to ascertain his occupation, use and the extent of his developments, and file a report, contending that the Defendants had alleged at the hearing of 10th July 2017 that he occupied only a small portion of the original parcel. The Defendants opposed the application in grounds of opposition, arguing that it sought to convert the Deputy Registrar into the Plaintiff's witness after the close of the Plaintiff's case, that the Deputy Registrar lacked expertise to determine contested issues, and that the application was a delaying tactic. The court allowed the application in terms of prayer (a). It held there was no material showing the Deputy Registrar would become the Plaintiff's witness, since the report could favour either side and the officer would act impartially as an officer of the court. It further held the Deputy Registrar would not determine contested issues; that responsibility remains with the trial court after parties adduce evidence and submissions. Exercising its inherent power under section 3A, the court found the visit would serve the ends of justice and that the Defendants, yet to testify, would suffer no prejudice. The Deputy Registrar was directed to visit the suit properties, file a report within 45 days, supply copies to all parties upon filing, with costs in the cause, and a mention date was to be fixed for compliance and defence hearing.

Key legal issues

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01

Whether a Deputy Registrar's site visit and report converts the officer into a party's witness

Holding

No - there was no material supporting that conclusion; the report may favour either party and the Deputy Registrar remains an impartial officer of the court.

Reasoning

The court found nothing on record to justify treating the proposed site visit as procuring a witness for the Plaintiff. The Deputy Registrar's role is confined to observing the ground and compiling a report for the court, which could equally favour the Defendants, so the impartiality of the exercise is preserved.

p. 2
02

Whether the Deputy Registrar would be determining contested issues in the suit

Holding

No - the officer only observes and reports; determination of the issues remains with the trial court after parties adduce evidence and submissions.

Reasoning

The court drew a distinction between fact-gathering and fact-adjudication. The Deputy Registrar's mandate is limited to a visit, observations and a report, while the responsibility of determining the controversy stays with the trial court, which will consider the report alongside the parties' evidence and submissions.

p. 2
03

Whether the inherent jurisdiction under section 3A justified the order despite the Plaintiff having closed his case

Holding

Yes - the visit and report would assist the court to arrive at a just decision and the Defendants, who had not yet testified, would suffer no prejudice.

Reasoning

The court invoked its inherent power under section 3A, holding that the site visit would serve the ends of justice. It noted the Defendants were yet to testify and would still present their evidence, so no prejudice would flow from the visit and report.

p. 2

Legal principles established

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  • A court-ordered site visit and report by a Deputy Registrar does not make that officer a party's witness nor usurp the trial court's fact-finding role; the officer acts impartially as an officer of the court.
  • Section 3A of the Civil Procedure Act preserves the court's inherent power to make orders for the ends of justice or to prevent abuse of court process.

Court orders

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  1. 1.The notice of motion dated 22nd September 2017 is allowed in terms of prayer (a)
  2. 2.The Deputy Registrar shall visit the suit properties and file his report within 45 days from the date of the ruling
  3. 3.All parties shall be supplied with a copy of the said report upon filing
  4. 4.Costs of the application shall be in the cause
  5. 5.The court shall fix a mention date to confirm compliance and fix a date for defence hearing

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)section 3A
  • Civil Procedure RulesOrder 51
Jurisdiction invoked
Section 3A of the Civil Procedure Act (Cap 21) and Order 51 of the Civil Procedure Rules

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, "Bernard Mbuti King’oroti v Njagi Gikunju & another [2017] KEELC 922 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/922/eng@2017-11-23

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