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ELCDismissedMeru ELC Petition (application dated 4.11.2021) - petition filed 17.7.2018· [2021] KEELC 253 (KLR)

Yuda Imunya v Atanasio Kibaara & 2 others [2021] KEELC 253 (KLR)

Environment and Land Court
20 December 2021
CNC.K. Nzili
1,385 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The court refused to order forensic examination of disputed land documents, telling the petitioner to first report to police and fast-track his own case.

What this practically means

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Executive summary

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By an application dated 4.11.2021 the petitioner sought to vary and set aside directions of 13.10.2021 that the petition be disposed of by written submissions, so that the petition be heard by viva voce evidence, and further sought an order that three summons dated 16.11.2016, 2.3.2017 and 7.4.2017 supplied by the 1st respondent be subjected to forensic analysis. The petition, filed in 2018, challenged A/R objection proceedings over Parcel No. 5392 Karama Adjudication Section, alleging they were conducted without hearing him while Meru ELC Case No. 245 was pending, and sought certiorari and prohibition. The court observed the authenticity of the summons was already in issue in the Meru ELC judgment of 12.5.2021 and pleaded in the 1st respondent's December 2019 answer, so the petitioner could not claim he only discovered them in October 2021. Noting the petitioner's failure to comply with Order 11 directions for over six months, his lack of effort to seek forensic audit since 2017 and 2019, and his failure to lodge any police complaint or OB entry, the court held the investigative arm of government is the first port of call and need not be directed by the court. The petitioner was left at liberty to report to the DCI Land Fraud Unit and file any report as evidence. The court found the application premature, declined to vary the mode of hearing before parties filed and exchanged responses, and ordered the petitioner to set down the petition for hearing within six months. The application was dismissed as premature.

Key legal issues

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01

Forensic examination of disputed summons

Holding

Refused as premature; the petitioner is free to report to the DCI Land Fraud Unit and file the report as evidence if obtained

Reasoning

The court found the petitioner knew of the disputed summons as early as the Meru ELC judgment and the 1st respondent's December 2019 answer, yet took no steps since 2017/2019 to seek forensic audit, make a police complaint, OB entry or report to the makers of the documents. The investigative arm does not need court direction, so directing forensic analysis at this stage was unwarranted.

p. 2
02

Review of mode of hearing (viva voce vs written submissions)

Holding

Refused; petition to be set down for hearing within six months after compliance

Reasoning

The 2018 petition had languished due to the parties' failure to comply with Order 11 directions for over six months. Given that intended investigations might take time, varying the mode of hearing before parties filed and exchanged responses would put the cart before the horse. The applicant was directed to expedite the petition instead.

p. 2

Legal principles established

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  • A party alleging forgery must make deliberate efforts to obtain that evidence through discovery, a notice to produce, or by lodging a formal complaint with investigative agencies before seeking the court's intervention
  • An application to vary the mode of disposal of a petition is premature where responses have not been filed and exchanged and no reasonable expedition has been shown

Court orders

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  1. 1.The petitioner is at liberty to make a formal report with the Land Fraud Unit of the DCI and thereafter file the report if he intends to rely on it as part of his evidence
  2. 2.The petitioner is ordered to put his house in order and set down the petition for hearing within six months
  3. 3.Application dismissed as premature; orders accordingly

Authorities

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Legislation

  • Evidence ActSection 76(1)
  • Civil Procedure RulesOrder 11
Jurisdiction invoked
Original constitutional petition jurisdiction of the Environment and Land Court (petition filed 17.7.2018 alleging infringement of constitutional rights to access to justice, equal protection and protection of property)

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, "Yuda Imunya v Atanasio Kibaara & 2 others [2021] KEELC 253 (KLR)", Case Analysis (2021). Meru ELC Petition (application dated 4.11.2021) - petition filed 17.7.2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/253/eng@2021-12-20

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