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ELCPartially AllowedH.C.C. No. 91 of 1996 (Meru) - reconstructed file· [2017] KEELC 1379 (KLR)

Peter Mugambi Marete v Ngutari Miriti [2017] KEELC 1379 (KLR)

Environment and Land Court
11 October 2017
946 words in judgment
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The bottom line

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A Kenyan court rebuilt a lost 21-year-old land file, heard two elderly litigants the same day, and split the land 2 acres each way by consent.

What this practically means

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Executive summary

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This is a first-instance determination of H.C.C. No. 91 of 1996 (Meru), a land dispute over parcel NYAKI/THUURA/1139, heard under extraordinary circumstances after the original court file was lost. On 11 October 2017 the court reconstructed the file, allowed the application dated 7.7.17 in terms of prayer 2, but declined to adopt a consent dated 22.5.2013 as an order of the court. Noting that both parties were unrepresented, elderly and infirm - the defendant carried into court on a makeshift bed, the plaintiff aged 81, blind and paralysed - the court moved suo moto to take the evidence of both parties de bene esse, expanding Order 18 rule 9 on the strength of Article 159(2) of the Constitution (justice shall not be delayed; justice administered without undue regard to procedural technicalities) and the Article 10 national values of human dignity and protection of the marginalised. The defendant gave lucid evidence and admitted the plaintiff's occupation of 3 acres; the plaintiff's evidence was interrupted by settlement negotiations. The parties reached a consent that the plaintiff retain 2 acres provided he gave the defendant some trees. The court accordingly ordered that the plaintiff is entitled to 2 acres to be hived off from the portion he occupies, that all inhibitions and cautions be lifted to facilitate subdivision, that the plaintiff give some trees to the defendant, and that each party bear their own costs. The adoption of the 2013 consent was refused.

Key legal issues

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01

Whether the court could hear the entire suit on the spot under extraordinary circumstances

Holding

Yes. Given the loss of the file, the advanced age and frailty of both parties, the court took evidence de bene esse suo moto and determined the matter the same day, invoking Article 159(2) of the Constitution.

Reasoning

The original 1996 file was lost; both litigants were elderly and infirm - the defendant carried into court on a makeshift bed and the plaintiff 81 years old, blind and paralysed. Formalities under Order 18 rule 9 (which contemplates application by a party or witness) were relaxed. The court relied on the constitutional imperatives that justice shall not be delayed and shall be administered without undue regard to procedural technicalities, and on national values of human dignity and protection of the marginalised under Article 10.

p. 2
02

The plaintiff's entitlement to the suit land

Holding

The plaintiff bought 3 acres in 1972 and occupies them; pursuant to a court-annexed settlement, he is entitled to 2 acres to be hived off from the portion he occupies, with cautions and inhibitions lifted and some trees given to the defendant.

Reasoning

The defendant admitted selling land to the plaintiff and that the plaintiff was in occupation of 3 acres of the 4-acre parcel NYAKI/THUURA/1139. After evidence, the parties consented that the plaintiff keep 2 acres provided the defendant received some trees. The court reduced that settlement into orders.

p. 2

Legal principles established

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  • A court may, in exceptional circumstances, expand the application of Order 18 rule 9 to take evidence de bene esse on its own motion where formality would defeat justice, guided by Article 159(2) of the Constitution.

Court orders

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  1. 1.Application dated 7.7.17 allowed in terms of prayer 2 for reconstruction of the court file
  2. 2.Prayer to adopt the consent of 22.5.2013 as an order of the court disallowed
  3. 3.Court moved itself suo moto to take evidence of plaintiff and defendant de bene esse
  4. 4.Plaintiff is entitled to 2 acres of land from Parcel No. NYAKI/THUURA/1139
  5. 5.The two acres of the plaintiff are to be hived off from the portion the plaintiff is already occupying
  6. 6.All inhibitions and cautions lodged on the suit land to be lifted forthwith to facilitate the subdivision
  7. 7.Plaintiff is to give some trees to defendant
  8. 8.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure Rules (Order 18 rule 9)Order 18 rule 9 and proviso
  • Constitution of Kenya, 2010Article 159(2)(b) and 2(d)
  • Constitution of Kenya, 2010Article 10
Jurisdiction invoked
Original civil jurisdiction of the High Court/ELC over the 1996 land suit; file reconstructed under Order 18 rule 9 with evidence taken de bene esse

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, "Peter Mugambi Marete v Ngutari Miriti [2017] KEELC 1379 (KLR)", Case Analysis (2017). H.C.C. No. 91 of 1996 (Meru) - reconstructed file. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1379/eng@2017-10-11

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