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ELCPartially AllowedNot stated in the judgment· [2018] KEELC 4052 (KLR)

Cleophas Wafula v Asmin Nasambu & another [2018] KEELC 4052 (KLR)

Environment and Land Court, Bungoma
22 February 2018
SMS. MUKUNYA
347 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A land surveyor's report agreed to by both sides is evidence a Kenyan court will admit, and you cannot dismiss it without formally applying to set it aside.

What this practically means

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Executive summary

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This short ruling by the Environment and Land Court at Bungoma dealt with a surveyor's report filed pursuant to a consent order adopted on 9th March 2017. Under that consent, Land Surveyor Bungoma was directed to visit parcels East Bukusu W. Sang’alo 890 and the subdivisions therefrom, fix the boundaries, and file a report including a detailed history of parcels East Bukusu/West Sang’alo 890 and 891 within 60 days, with the surveyor's costs shared equally between the parties. The report was filed on 9th May 2017, and both parties filed submissions on it - the plaintiff supporting and the defendant opposing it. The court characterised the report as expert evidence which, having been solicited by the consent of the parties, could not be dismissed off hand. Any party challenging it was required to use the processes provided by law, and no application to set it aside had been filed. The court admitted the report as evidence and directed that the seven-year-old suit be fixed for hearing on merits on a priority basis, when all issues would be tested on cross-examination. No costs order was made in the ruling; the judgment was read in open court before counsel for both parties. This is an interlocutory decision admitting evidence, not a final determination of the suit.

Key legal issues

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01

Admissibility and evidential status of a consent-solicited expert surveyor's report

Holding

The surveyor's report is expert evidence, admissible in the suit, and cannot be dismissed off hand merely because a party opposes it; in the absence of an application to set it aside, it is admitted, with issues to be tested at the hearing on cross-examination.

Reasoning

The report arose from a consent order adopted by the court on 9/3/2017, under which the surveyor was to fix boundaries and file a report. Both parties filed submissions on the report. The court held that evidence solicited by consent cannot be dismissed summarily and that any challenge must use lawful processes, such as an application to set the report aside. Having received no such application, the court admitted the report, leaving its weight to be tested on cross-examination at the hearing of the seven-year-old suit.

p. 1

Legal principles established

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  • A report produced by a court-appointed expert under a consent order is expert evidence that cannot be dismissed off hand; any party challenging it must do so through the processes provided by law, such as an application to set it aside or testing it at the hearing on cross-examination.

Court orders

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  1. 1.The surveyor's report is admitted as evidence in the case
  2. 2.The suit to be fixed for hearing on merits on a priority basis, when all issues shall be tested on cross-examination
Jurisdiction invoked
Original suit before the Environment and Land Court (statutory provision not stated in the judgment)

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, "Cleophas Wafula v Asmin Nasambu & another [2018] KEELC 4052 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4052/eng@2018-02-22

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