Kenta v Njapit & 5 others
The bottom line
#Kenya's Environment and Land Court refused to order a land survey before trial, ruling that parties must first present their evidence in court.
What this practically means
#Executive summary
#Key legal issues
#Whether a supporting affidavit with the jurat on a separate page is fatally defective
Not defective; it is an irregularity of form curable under Article 159(2)(d) of the Constitution, which depreciates procedural technicalities in favour of substantive justice
Relying on Burnaby Properties Limited v Suntra Stocks Limited, the court held that a jurat on a separate page is not a defect going to jurisdiction but an irregularity of form. Article 159(2)(d) requires courts not to pay undue regard to procedural technicalities. The affidavit was therefore proper for all intents and purposes and the prayer to strike it out failed.
Whether the court should order a site visit and report by the Land Registrar and Surveyor before trial
Refused at the interlocutory stage; parties must first present their case, and any site visit or report may be ordered in the course of trial if needed
Citing Beatrice Ngonyo Ndungu and Chira v Kenya Power, the court noted that site visits serve to receive evidence, and a party who has not adduced evidence cannot invite the court to investigate. Ownership was not disputed and the size appears on the title. Since parties were yet to present their case, ordering a visit then would be premature.
Legal principles established
#- A jurat appearing on a separate page from the averments is an irregularity of form, not substance, and is curable under Article 159(2)(d) of the Constitution
- A court will not order a site visit or investigation before parties have presented their case; the court shall not be converted into an investigation forum
Court orders
#- 1.The notice of motion application dated 7th November, 2022 is dismissed with costs to the plaintiff/respondent
- 2.Matter fixed for mention on 30th May, 2023 for directions to enable parties fix a date for hearing
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land; application brought under Sections 1A, 1B, 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenta v Njapit & 5 others", Case Analysis (2023). Environment & Land Case E013 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17646/eng@2023-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.