Bernard Mbuti King’oroti v Njagi Gikunju & another [2017] KEELC 922 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a Deputy Registrar's site visit and report converts the officer into a party's witness
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.
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.
Whether the Deputy Registrar would be determining contested issues in the suit
No - the officer only observes and reports; determination of the issues remains with the trial court after parties adduce evidence and submissions.
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.
Whether the inherent jurisdiction under section 3A justified the order despite the Plaintiff having closed his case
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.
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 22nd September 2017 is allowed in terms of prayer (a)
- 2.The Deputy Registrar shall visit the suit properties and file his report within 45 days from the date of the ruling
- 3.All parties shall be supplied with a copy of the said report upon filing
- 4.Costs of the application shall be in the cause
- 5.The court shall fix a mention date to confirm compliance and fix a date for defence hearing
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act (Cap 21) and Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.