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ELCPartially AllowedEnvironment & Land Petition 3 of 2020· [2023] KEELC 20580 (KLR)

Kailutha & 4 others v Adjudication Officer Ruiri/Rwarera Adjudication Section & 2 others; M'muthuri & 13 others (Interested Parties)

Environment and Land Court
11 October 2023
CYC.K. Yano
741 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court allowed a fresh site inspection of disputed parcels mid-trial, saying the visit would help it decide fairly and no one would be unfairly harmed.

What this practically means

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Executive summary

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This is an interlocutory ruling by C.K. Yano, J of the Environment and Land Court at Meru in a consolidated land adjudication petition (Petition 3 of 2020 consolidated with Petition 2 of 2019), which was part-heard, with the petitioner in Petition 2 of 2019 having closed his case. The 1st petitioner in Petition 3 of 2020, Stanley Kailutha, moved by notice of motion dated 31 July 2023 seeking an order directing the Deputy Registrar to conduct a scene visit on ten land parcels in the Ruiri/Rwarera Adjudication Section (750, 752, 815, 831, 2447, 2969, 3999, 5670, 5997 and 6266) to establish occupation, developments and installations, and to file a report. He argued that although a scene visit had earlier been conducted in Petition 2 of 2019, these parcels were never visited. The 5th, 10th, 11th and 14th interested parties opposed via a replying affidavit sworn by Philip Kangethe, contending the application was an afterthought and delaying tactic that should have been raised at pre-trial, and that any costs should fall on the applicants. The remaining parties did not oppose but sought the applicants to bear the visit costs. The court framed a single issue - whether the orders sought should be allowed - and allowed the application, holding the report may assist a just decision and no party would be prejudiced since parties who closed their cases could reopen them. The motion was allowed in terms of prayers 1 and 2, with a report to be filed within 30 days and the applicants meeting the costs of the visit.

Key legal issues

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01

Whether a scene visit should be ordered in a consolidated, part-heard petition

Holding

Application allowed; the visit may assist the court to reach a just decision and no party is prejudiced, since parties who closed their cases may reopen them

Reasoning

The court noted a prior scene visit had been conducted in Petition No. 2 of 2019 but the parcels now listed were never visited. It weighed the probative value of a fresh report against objections that the application was an afterthought and a delaying tactic, concluding the report could assist a just decision and any prejudice could be cured by reopening cases, with costs on the applicants.

p. 2

Legal principles established

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  • A court may order a scene visit in a consolidated suit even at a part-heard stage where the report may assist the court and no party will suffer prejudice

Court orders

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  1. 1.Notice of motion dated July 31, 2023 allowed in terms of prayers 1 and 2 thereof
  2. 2.Deputy Registrar to conduct a scene visit on land Parcels No. Ruiri/Rwarera Adjudication Section 750, 752, 815, 831, 2447, 2969, 3999, 5670, 5997 and 6266 to establish occupation, developments and installations, and file a report
  3. 3.Report to be filed within 30 days
  4. 4.Applicants to meet the costs of the scene visit
Jurisdiction invoked
Original petition jurisdiction of the Environment and Land Court (interlocutory application in a consolidated petition)

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, "Kailutha & 4 others v Adjudication Officer Ruiri/Rwarera Adjudication Section & 2 others; M'muthuri & 13 others (Interested Parties)", Case Analysis (2023). Environment & Land Petition 3 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20580/eng@2023-10-11

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