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ELCOther· [2021] KEELC 4415 (KLR)

Seth Owawa v Peter Obiero Nyagumba & 2 others [2021] KEELC 4415 (KLR)

Environment and Land Court
10 February 2021
GOG.M.A. Ongondo
1,149 words in judgment
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The bottom line

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A Migori court refused to adopt an incomplete land survey report, confirming that surveyors' opinions don't bind Kenyan courts unless the survey work is fully done.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Migori (G.M.A. Ongondo, J) dealt with an oral application by the plaintiff, Seth Owawa, seeking the adoption of a Migori County Surveyor's report dated 3rd December 2018 and filed on 12th April 2019. The report originated from court orders of 20th July 2017 directing the Land Registrar and County Surveyor, Migori County, to visit land parcel No. Kanyamkago/Kajulu/669 and fix boundaries with proper measurements. The plaintiff's suit, commenced by plaint in November 2016, sought a declaration that the subdivision of the suit property into LR numbers Kanyamkago/Kajulu/2195, 296 and 297 was illegal and a nullity, and rectification of the register. The 1st defendant opposed adoption through grounds of opposition, terming the application an abuse of process; the 2nd and 3rd defendants filed nothing. The court characterized the report as expert opinion evidence under sections 48 to 54 of the Evidence Act, not binding on the court. Noting that the report's 'way forward' contemplated a surveyor's revisit to the suit property and that no report or outcome of such revisit was discernable on the record, the court found the report not adoptable at that stage, invoking the parties' rights of access to justice under Article 48 and fair hearing under Articles 50(1) and 25(c) of the Constitution. The court disallowed the application and directed the Land Registrar and County Surveyor to file a report of the revisit within sixty days, parties to file submissions within thirty days thereafter, with the matter set for 13th May 2021 for compliance and directions.

Key legal issues

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01

Adoptability of the surveyor's report

Holding

The report could not be adopted because the revisit contemplated in its 'way forward' had not taken place and no report of such revisit was on record

Reasoning

The report was expert opinion evidence under sections 48-54 of the Evidence Act, which the court may accept or reject. The report's own 'way forward' contemplated a surveyor's revisit to demarcate boundaries and generate a plan. No report or outcome of that revisit appeared in the filed documents, so adoption at that stage would deprive parties of the material needed for a fair hearing.

p. 2
02

Fair hearing and access to justice

Holding

Adoption of an incomplete survey report would curtail the parties' constitutional rights of access to justice and fair hearing

Reasoning

The court held that parties have an uncurtailed right of access to justice under Article 48 of the Constitution, including access to the surveyor's revisit report, and a right to fair hearing under Article 50(1) read with Article 25(c). This constitutional dimension outweighed any expediency in adopting the report before completion of the survey exercise.

p. 2

Legal principles established

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  • Expert opinion evidence is not binding on the court; the court must consider it with other evidence and form its own opinion

Court orders

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  1. 1.The Land Registrar and County Surveyor Migori to file a report of the revisit to the suit property within sixty (60) days
  2. 2.All parties to file and serve submissions on the report of the first visit and the revisit within thirty (30) days from expiry of the timeline in order (a)
  3. 3.Matter fixed for 13th May 2021 to confirm compliance and for directions

Authorities

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Legislation

  • Evidence Actsections 48 to 54
  • Civil Procedure Actsections 3, 3A, 1A and 1B
  • Civil Procedure Rules, 2010Order 51 Rule 16
  • Environment and Land Court Actsection 3
  • Constitution of Kenya, 2010Articles 48, 50(1) and 25(c)

Cases cited (4)

  • Andrew Marigwa =vs= Joseph Ondieki Kebati
    (2017) eKLR
  • Registered Trustees, Legio Maria Africa Church Mission =vs= Simon Nyamweya Obwocha
    (2018) eKLR
  • CD Desouza =vs= BR Sharma
    (1953) 26 KLR 41
  • Amosam Builders Development Ltd =vs= Gachie & 2 others
    (2009) KLR 648
Jurisdiction invoked
Environment and Land Court Act, 2015; inherent powers under sections 3 and 3A of the Civil Procedure Act

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, "Seth Owawa v Peter Obiero Nyagumba & 2 others [2021] KEELC 4415 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4415/eng@2021-02-10

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