Masha Birya Dena v Francis Kahindi Kalume [2021] KEELC 839 (KLR)
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
#Key legal issues
#Legal meaning, nature and scope of site visits (locus in quo)
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
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.
Whether a site visit is necessary in this case
The application was merited in principle but premature; the court deferred it until it had heard at least 7 to 10 witnesses
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.
Logistics of a site visit and who bears them
A site visit involves substantial logistical demands - resources, time, money, human power and security - warranting deferral
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.
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.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
- 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.