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ELCDismissedNot stated in judgment· [2019] KEELC 2929 (KLR)

Ahmed Abdullahi Abdille v Abdille Nur Abdi & 3 others [2019] KEELC 2929 (KLR)

Environment and Land Court
21 June 2019
ECE. C Cherono
1,120 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to order a surveyor's report before trial, confirming that parties must gather their own evidence and cannot enlist the court's help.

What this practically means

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Executive summary

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The Plaintiff/Applicant moved the Environment and Land Court at Wajir by Notice of Motion dated 27th July 2017, brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, seeking an order directing the 4th Defendant surveyor to conduct a survey and prepare a report on UNS.Residential Plot No. T.5 Wajir Town, UNS.Residential Plot No. T.6 Wajir town and Plot No. R4245 Wajir township, with costs in the cause. The suit itself sought a permanent injunction against trespass and dealings with the plots. The Applicant, relying on a letter of allotment dated 31st August 2010, deposed that the survey report would assist the court in resolving the dispute over the parcels, each party holding different ownership documents. The Defendants, through the 2nd Defendant's replying affidavit and submissions, opposed the application, arguing it amounted to the court assisting the Plaintiff to procure evidence, that the real dispute was ownership rather than a boundary dispute, and that the 4th Defendant, being a party, could not be compelled to produce documents before trial without cross-examination. The court, E. C Cherono, ELC Judge, held that under Order 3 Rule 2 a claimant must file all evidentiary documents with the suit, and that the court is an impartial umpire which cannot assist a party to procure evidence or compel witnesses to prepare reports. The application was found incompetent, bad in law and an abuse of process, and was dismissed with costs to the Defendants.

Key legal issues

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01

Whether the court may order the 4th Defendant surveyor to conduct a survey and prepare a report at the interlocutory stage

Holding

The application was dismissed as incompetent, bad in law and an abuse of process because it sought to compel a party/witness to prepare evidence in the applicant's favour

Reasoning

The court noted that under Order 3 Rule 2 CPR a claimant must file all evidentiary documents with the suit. The application sought to procure further evidence in the applicant's favour after filing suit. The court held it is an impartial umpire, not a vessel for compelling witnesses to prepare reports, and its role is limited to issuing summons where requested. Compelling a party to prepare a report before trial also denied cross-examination opportunity.

p. 2

Legal principles established

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  • A court is an impartial umpire and cannot exercise its discretion to assist a party to procure evidence to the disadvantage of the opposite party
  • A claimant must file all evidentiary documents relied on at trial together with the suit, as required by Order 3 Rule 2 Civil Procedure Rules

Court orders

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  1. 1.The Notice of Motion dated 27th July 2017 is dismissed
  2. 2.Costs of the application awarded to the Defendants

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 21, 22, 23
  • Civil Procedure RulesOrder 51 Rule 1; Order 3 Rule 2; Order 4 Rule 1(2)
Jurisdiction invoked
Sections 1A, 1B and 3A Civil Procedure Act and Order 51 Rule 1 Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ahmed Abdullahi Abdille v Abdille Nur Abdi & 3 others [2019] KEELC 2929 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2929/eng@2019-06-21

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