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ELCDismissed· [2022] KEELC 552 (KLR)

Sukhdev Singh Laly v Magnate Ventures Limited [2022] KEELC 552 (KLR)

Environment and Land Court
10 March 2022
1,006 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 to revisit settled issues or tour disputed land, telling the parties to prove their case with evidence instead.

What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Nairobi (Mogeni J) determined two applications filed by the Defendant on 8/03/2022 in a suit alleging trespass and illegal erection of a commercial advertising billboard on the Plaintiff's property, Title No. Nairobi Block 93/1429. The first application, under Order 1 Rule 22 of the Civil Procedure Rules, sought directions on a Third Party Notice issued to Joseph Elijah Kariuki; the second, under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 40 Rule 10, sought a site visit by the court to confirm the existence of a road on the suit property. The court declined the first application, holding that the Third Party Notice was res judicata, having been dealt with in a ruling delivered on 21/10/2021, and that entertaining the application would be an abuse of process. On the site visit, the court held that in an adversarial system the burden of proving facts lies on the parties and a site visit is justified only as an occasion for receiving evidence; since a judge without survey expertise or equipment could learn nothing useful, an expert surveyor's report would serve better. Relying on Cyrus Nyaga Kabute v Kirinyaga County Council and Fernandes v Noronha, the court reiterated that notes from a locus in quo visit must be put to the parties on oath before reliance in judgment. Both applications were dismissed with costs, and the parties were directed to proceed to hearing in open court the same morning.

Key legal issues

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01

Whether the application for directions on the Third Party Notice could be entertained

Holding

It could not; the Notice was res judicata having been the subject of a ruling on 21/10/2021, and the application was an abuse of process

Reasoning

The court had already rendered itself on the Third Party Notice in a ruling delivered on 21/10/2021. Entertaining a fresh application on the same issue would amount to relitigating a matter already decided, which the court characterized as an abuse of the court process not deserving of entertainment.

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02

Whether the court should conduct a site visit to confirm the existence of a road on the suit property

Holding

The site visit was refused; facts must be proved by evidence adduced by parties, and a surveyor's expert report would be more useful than a judicial visit

Reasoning

Under the adversarial system parties bear the burden of proving their assertions through oral or documentary evidence. A site visit can only be justified as an occasion for receiving evidence; here a judge without survey expertise or equipment would gain nothing, and the parties had by consensus already opted for hearing and submissions. The application was therefore dismissed.

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Legal principles established

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  • A court should only undertake a site visit for purposes of receiving evidence to assist it reach a just decision; where a visit cannot yield admissible evidence it serves no judicial purpose
  • In an adversarial system, the burden of proving facts lies on the parties, and the court does not go out to seek facts on its own
  • When a magistrate or judge visits land and makes notes, parties must be given a chance to agree with, deny or contradict those notes on oath before they may be relied upon in judgment

Court orders

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  1. 1.Both applications dismissed with costs
  2. 2.Parties to proceed in open court for hearing at 10.00am on 10/03/2022

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 1 Rule 22
  • Civil Procedure Rules 2010Order 40 Rule 10
  • Civil Procedure ActSections 1A, 1B, 3 and 3A

Cases cited (2)

  • Cyrus Nyaga Kabute v Kirinyaga County Council
    [1987] eKLR
  • Fernandes v Noronha
    [1969] EA 506
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - not expressly stated; applications brought under the Civil Procedure Act (Sections 1A, 1B, 3 & 3A) and Civil Procedure Rules 2010 (Order 1 Rule 22; Order 40 Rule 10)

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, "Sukhdev Singh Laly v Magnate Ventures Limited [2022] KEELC 552 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/552/eng@2022-03-10

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