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ELCDismissedNot stated in the judgment as provided· [2020] KEELC 945 (KLR)

Njiru Micheni Nthiga v Governor, Tharaka Nithi County Government & 5 others [2020] KEELC 945 (KLR)

Environment and Land Court
21 October 2020
PNP. M. Njoroge
6,350 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~25 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court at Chuka refused to help a landowner gather his own evidence, ruling that parties must prove their own cases.

What this practically means

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Executive summary

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The plaintiff, Njiru Micheni Nthiga, brought a notice of motion dated 27th February 2020 in his suit over LR Magumoni/Thuita/779 seeking three substantive prayers: that the District Land Registrar Meru South visit the suit land and report on its acquisition and whether it emanated from an allotment by the defunct Meru County Council; that the District Surveyor Meru South visit the land and report on its location on Registry Index Map Sheet No. 12 and whether it lies on a road reserve; and that the court make a site visit to confirm the extent of damage caused by the defendants to the building on the property. The application, grounded on the Environment and Land Court Act, the Civil Procedure Act and Order 40 Rule 10, was opposed by the 1st, 2nd, 4th, 5th and 6th defendants, who argued it was a fishing expedition in the nature of interrogatories, that no dispute existed as to ownership or location, that the plaintiff should pay for his own surveyor and valuer, and that a site visit would make the judge a mere tourist. After considering written submissions and the authorities cited by both sides, the court held that parties cannot use the court to ferret out evidence on their behalf; the prayers as crafted would have the court look for evidence the plaintiff should adduce himself, and the plaintiff was free to call the government officers as witnesses at the hearing. The court found the preferable course was an expeditious hearing supported by the parties. It dismissed the application and ordered costs to be in the cause. Judgment delivered at Chuka on 21st October 2020.

Key legal issues

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01

Whether the court should direct the District Land Registrar and District Surveyor to visit the suit land and furnish reports on acquisition and location

Holding

Refused - the prayers would require the court to gather evidence for the plaintiff, who bears the responsibility to adduce his own evidence

Reasoning

The court held that when a party files a suit it is expected to proffer apposite evidence. The plaintiff is not precluded from calling government officers such as the Land Registrar or Surveyor as witnesses. Crafting prayers to have officers produce reports for the court would amount to the court ferreting out evidence on the plaintiff's behalf, which is impermissible. The better course is an expeditious hearing supported by the parties' own evidence.

p. 10
02

Whether the court should make a site visit to view the extent of damage to the building

Holding

Refused - such a visit would yield no admissible evidence; the plaintiff is to rely on a valuation report

Reasoning

The defendants argued, relying on Beatrice Ngonyo Ndungu and Cyrus Nyaga Kabute, that a site visit incapable of yielding evidence reduces the judge to a tourist, and that notes from any locus in quo visit must be agreed or read to counsel. The plaintiff was expected to file a valuation report with photographs quantifying the damage. The court found the visit incapable of yielding evidence and better served by a valuer's report.

p. 9

Legal principles established

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  • A court cannot be used as an instrument for parties to gather evidence; parties must proffer their own evidence orally and through documents, and may call government officers to testify

Court orders

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  1. 1.This application is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Environment and Land Court Actsections 13(1), 19(1) and (2)
  • Civil Procedure Actsection 3A; sections 22 and 23
  • Civil Procedure Rules, 2010Order 40 Rule 10; Order 51 Rules 1 and 3; Order 11 Rule 3(2)
  • Constitution of Kenya, 2010Article 159(2)(a), (b), (d) and (e)
  • Land Registration Actsection 18(2)

Cases cited (16)

  • Showcase Properties Limited v Bamburi Special Products Limited
    [2013] eKLR, Civil Case 577 of 2011
  • John K Koech v Peter Chepkwony
    [2019] eKLR, ELC No. 32 of 2017
  • Tulip Properties Limited v Mohamed Koriow Nur & Four Others
    [2007] eKLR
  • Mwahima Mwalimu Masudi v Independent Electoral and Boundaries & 3 Others
    [2017] eKLR
  • Onesmus Kamau Mungai v Phares Mwangi Kamau & 2 Others
    [2019] eKLR
  • Cyrus Nyaga Kabute v Kirinyaga County Council
    [1987] eKLR
  • Fernandes v Noronha
    [1969] EA 506
  • Beatrice Ngonyo Ndungu & another v Samuel K. Kanyoro & 2 Others
    [2017] eKLR
  • Jasbir Singh Rai and 3 Others v Tarlochan Singh Rai and 4 Others
    [2014] eKLR
  • Republic v Communication Authority of Kenya and another ex-parte Legal Advice Centre aka Kituo Cha Sheria
    [2015] eKLR
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
  • Ratilal Ghela Shah & 2 Others v Menkar Ltd
    (2018) eKLR
  • Willis Ocholla v Mary Ndege
    (2016) eKLR
  • Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others
    (2015) eKLR
  • Philip Osore Ogutu v Michael Aringo & 2 other
    Busia High Court Election Petition No. 1 of 2013
  • Richard Kalembe Ndile v Patrick Musimba Mweu
    Election Petition No. 7 of 2013
Jurisdiction invoked
Environment and Land Court Act, sections 13(1) and 19(1) and (2), as invoked by the applicant; Civil Procedure Act section 3A and Order 51 Rules 1 and 3; Article 159(2)(a), (b), (d) and (e) of the Constitution

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, "Njiru Micheni Nthiga v Governor, Tharaka Nithi County Government & 5 others [2020] KEELC 945 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/945/eng@2020-10-21

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