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ELCDismissed· [2022] KEELC 1596 (KLR)

Atek Otech Richard & 11 others v Stelco Properties; M-Oriental Bank Limited (Interested Party) [2022] KEELC 1596 (KLR)

Environment and Land Court
10 February 2022
MMM.D. Mwangi
991 words in judgment
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The bottom line

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A Kenyan land court refused a pre-hearing site visit, ruling parties must gather their own evidence and courts must stay impartial.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Nairobi, delivered by M.D. Mwangi, J on 10 February 2022, determined an oral application by the Interested Party and the Defendant for the court to visit the locus in quo in a pending adverse possession suit. The Applicants contended that the Plaintiffs were erecting permanent structures on the suit property to change its status to their advantage, and asked the Deputy Registrar to visit the site and report, including on whether structures were on the suit property or an adjacent parcel subject to a similar adverse possession claim by a different group. The Plaintiffs opposed, arguing the visit was unnecessary, wasteful of court resources, and would amount to the court gathering evidence for a party. The court applied Parkire Stephen Munkasio v Kedong Ranch Ltd and Beatrice Ngonyo Ndung'u v Samuel K Kanyoro, holding that litigants must place their own material before the court and that a site visit is only justified where it can yield admissible evidence. Emphasising the adversarial system and judicial impartiality, and noting the application was made orally from the bar before any evidence was taken and that a surveyor's expert report would be more useful than a visit by a non-expert Deputy Registrar, the court disallowed the application and urged parties to prepare for the hearing already set. No costs order was made.

Key legal issues

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01

Whether a pre-hearing application for a locus in quo visit should be allowed

Holding

The application was disallowed because it was made orally from the bar before any evidence was presented, was not based on material evidence, risked compromising the court's impartiality in an adversarial system, and would be conducted by the Deputy Registrar who is not a survey expert.

Reasoning

The court reviewed authorities establishing that litigants must place their own material before the court and that a site visit is only warranted where it can yield admissible evidence. Here no evidence had been taken and justifications were unsupported. A surveyor's expert report with equipment would be more useful, and judicial officials should concentrate on judicial functions without distraction.

p. 2

Legal principles established

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  • In an adversarial system the court must remain an impartial decision-maker and should not descend into the arena or gather evidence for a party
  • A site visit can only be justified where it is capable of yielding admissible evidence to assist in making a just decision
  • An expert report by a surveyor with survey equipment is more useful than a site visit by a judicial officer who is not a survey expert

Court orders

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  1. 1.The oral application by the Interested Party and the Defendant for the court (Deputy Registrar) to visit the locus in quo is disallowed
  2. 2.Parties urged to prepare for the hearing date already set and to have the matter concluded expeditiously

Authorities

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Cases cited (3)

  • Parkire Stephen Munkasio & 14 others Vs Kedong Ranch Ltd & 8 others
    (2015) eKLR
  • Beatrice Ngonyo Ndung'u & another Vs Samuel K Kanyoro & 2 others
    (2017) eKLR
  • Jashbhai C Patel vs BD Joshi
Jurisdiction invoked
Inherent jurisdiction of the court to control its own proceedings; not expressly stated in the ruling

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Atek Otech Richard & 11 others v Stelco Properties; M-Oriental Bank Limited (Interested Party) [2022] KEELC 1596 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1596/eng@2022-02-10

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