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ELCOtherNot stated in judgment (ELC suit, file open since 2011)· [2021] KEELC 17 (KLR)

Mhandisi Enterprises Limited v Mohammed Swalehe Mwajembe & 8 others [2021] KEELC 17 (KLR)

Environment and Land Court
1 November 2021
ADA.E Dena
1,157 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 a late request to visit disputed Diani Beach land, confirming parties must prove their case with evidence, not rely on the judge to investigate.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court on an oral application made by Counsel for the 1st and 2nd Defendants, after all parties had closed their cases, seeking a site visit to the suit property, Kwale/Diani Beach/653. The substantive dispute concerns duplicate registration: the Plaintiff claims as registered owner while the 1st and 2nd Defendants hold another title over the same land; the defendants also plead long occupation by their descendants, raising prescriptive rights. Counsel for the Plaintiff opposed the site visit, arguing the issues concerned registration of titles, not what was on the ground. Ms. Kiti for the 3rd and 9th Defendants left the matter to the court. Justice A.E Dena considered Order 18 rule 11 of the Civil Procedure Rules 2010, which permits inspection at any stage, and adopted the caution in Beatrice Nyongo Ndungu v Samuel K. Kangoro that facts must be proved by evidence and the court never seeks facts on its own. The court identified the crux of the dispute as duplicate registration, making occupation peripheral; the District Land Registrar and Survey Office had already testified and been cross-examined. The defendants had had ample opportunity, including after a prior judgment was set aside, to canvass occupation. The late application was an afterthought in a case pending since 2011, and litigation must come to an end. The application was declined on 1st November 2021. No costs order was recorded.

Key legal issues

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Whether the court should conduct a site visit after close of parties' cases

Holding

The application was declined. The key issue in the dispute was duplicate registration of title, making occupation a peripheral issue, and no value would be added by a site visit.

Reasoning

The court examined the purpose of a site visit under Order 18 rule 11 CPR 2010 and the Beatrice Nyongo Ndungu authority cautioning that facts must be presented as evidence and the burden lies on the party alleging. The Registrar and Survey Office, the experts on registration, had already testified and been cross-examined. The defendants had ample opportunity during pre-trial and after a prior judgment was set aside to canvass occupation. A late application was an afterthought in an old case where litigation must come to an end.

p. 2

Legal principles established

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  • The court may at any stage of a suit inspect property under Order 18 rule 11, but the exercise of that power is discretionary and depends on whether the visit will assist in a just decision
  • In an adversarial system the burden of proof lies on the party who alleges, and the court does not go out to seek facts on its own

Court orders

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  1. 1.The oral application by the 1st and 2nd Defendants for a site visit was declined

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 18 rule 11

Cases cited (1)

  • Beatrice Nyongo Ndungu & Others Versus Samuel K. Kangoro, the Attorney General & the County Government of Nakuru
    ELC 70 of 2008
Jurisdiction invoked
Not stated (Environment and Land Court original jurisdiction; Order 18 rule 11 of the Civil Procedure Rules 2010 invoked on the application)

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, "Mhandisi Enterprises Limited v Mohammed Swalehe Mwajembe & 8 others [2021] KEELC 17 (KLR)", Case Analysis (2021). Not stated in judgment (ELC suit, file open since 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/17/eng@2021-11-01

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