Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOthernot stated in the judgment extract· [2021] KEELC 839 (KLR)

Masha Birya Dena v Francis Kahindi Kalume [2021] KEELC 839 (KLR)

Environment and Land Court
12 November 2021
1,167 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Mombasa court postponed a land site visit until it hears more witnesses, confirming such visits are exceptional and discretionary.

What this practically means

#

Executive summary

#
This interlocutory ruling of the Environment and Land Court at Mombasa (L.L. Naikuni, J) deals with an oral application made on 9 November 2021 by counsel for the Plaintiffs, under Order 18 Rule 11 of the Civil Procedure Rules, for the court to conduct a site visit (locus in quo) to the suit property before or during the hearing. Counsel for the Plaintiffs sought a first-hand view of the residences, permanent structures and the vast area occupied by over 111 parties since the 1990s, in a dispute they framed around the Coastal concept of 'House without Land'. Counsel for the Defendants (Mr. Omolo and Mr. Kongere) opposed, arguing the evidence was already on record, a visit would add no value, and allegations of fraud could only be deduced in court. The court framed three issues: the legal meaning, nature and scope of site visits; their necessity in this case; and their logistics. Relying on Order 18 Rule 11 and authority including E. Kangye v E. Bwana and Cyrus Nyaga Kabute v Kirinyaga County Council, the court held that a locus in quo visit is discretionary, intended to check witness evidence rather than fill gaps, and is the exception rather than the rule. Although satisfied the application was merited in principle and of public interest, the court found it premature, only two witnesses having testified. The application was kept in abeyance, with the court to revisit it after hearing 7 to 10 witnesses. No costs order was made.

Key legal issues

#
01

Legal meaning, nature and scope of site visits (locus in quo)

Holding

Site visits are provided for under Order 18 Rule 11 of the Civil Procedure Rules, allowing the court at any stage of the suit to inspect any property or thing concerning which any question may arise

Reasoning

The court traced the statutory basis of locus in quo visits to Order 18 Rule 11 of the Civil Procedure Rules, which empowers the court at any stage to inspect property in question. It adopted comparative and local authority holding that such visits are discretionary, the exception rather than the rule, designed to check witness evidence rather than fill gaps, and must yield admissible evidence while the court remains judicial.

p. 1
02

Whether a site visit is necessary in this case

Holding

The application was merited in principle but premature; the court deferred it until it had heard at least 7 to 10 witnesses

Reasoning

The court acknowledged the matter's public interest, involving over 111 parties who have resided on the land since the 1990s, and the unique Coastal concept of 'House without Land'. However, only two witnesses had testified. The court found the application premature and directed that the hearing proceed first, deferring the site visit decision until the case's substratum was clearer.

p. 2
03

Logistics of a site visit and who bears them

Holding

A site visit involves substantial logistical demands - resources, time, money, human power and security - warranting deferral

Reasoning

The court noted the logistical burden of a site visit, including resources, time, money, human power and security. Given these demands and the prematurity of the application, it elected to keep the request in abeyance and concentrate on the hearing of the case, reserving the right to revisit the question at the opportune moment.

p. 2

Legal principles established

#
  • The purpose of visiting the locus in quo is to check on the evidence of witnesses, not to fill gaps in their evidence, lest the court turn itself into a witness; a visit is the exception rather than the rule
  • A site visit must be capable of yielding admissible evidence and the court must perform a judicial function and resist distractions

Court orders

#
  1. 1.The application for a site visit (locus in quo) is kept in abeyance pending the hearing of at least 7 to 10 witnesses, after which the court will reconsider whether the site visit is necessary

Authorities

#

Legislation

  • Civil Procedure RulesOrder 18 Rule 11
  • Environment and Land Court Actsection 3

Cases cited (3)

  • E. Kangye – Vs – E. Bwana
    HCCC (Kampala) No. 38 of 1989
  • Republic – Vs – National Environmental Tribunal & 4 others – Vs – China Road & Bridges
    (2016) eKLR
  • Cyrus Nyaga Kabute – Vs – Kirinyaga County Council
    Civil Appeal No. 29 of 1985
Jurisdiction invoked
Order 18 Rule 11 of the Civil Procedure Rules; section 3 of the Environment and Land Court Act 2012

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Masha Birya Dena v Francis Kahindi Kalume [2021] KEELC 839 (KLR)", Case Analysis (2021). not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/839/eng@2021-11-12

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