Gichengo v Ndiva (Environment and Land Appeal 66 of 2021) [2024] KEELC 801 (KLR)
The bottom line
#A Kenyan land court allowed a site visit to check who occupies disputed property, but refused to reverse an order to hand it over because a lawyer's email mistake doesn't count.
What this practically means
#Executive summary
#Key legal issues
#Whether a site visit by the Deputy Registrar should be ordered
The prayer for a site visit succeeded; the Court reluctantly exercised its power under Order 18 Rule 11 and Order 40 Rule 10 of the Civil Procedure Rules, 2010 to direct a visit to confirm the occupation status of the suit land.
The Court reviewed authority on locus in quo visits, acknowledging that visits must yield admissible evidence rather than satisfy curiosity. Although cautious that it might be seen as doing what the appellant herself should have evidenced, and that a land valuer's report might have been more useful, the Court gave the appellant the benefit of the doubt and allowed the prayer for a site visit.
Whether the ruling of 8th March, 2023 should be reviewed
The review failed. The occupation of the suit property by the tenant was always within the appellant's knowledge and required no discovery; the counsel's failure to attend the ruling due to spam mail was a mistake by an advocate, not an error apparent on the face of the record.
The Court set out the review grounds in Section 80 of the Civil Procedure Act and Order 45(1), relying on authorities requiring 'any other sufficient reason' to be analogous to the specified grounds. It held that the tenant's occupation was known to the appellant, the plea of counsel's mistake is a common one that does not affect the legality of the ruling, and the grounds did not meet the threshold for review.
Who bears the costs of the application
Each party to bear their own costs because the appellant succeeded on the site visit prayer but failed on the review prayer.
Costs are discretionary under Section 27 of the Civil Procedure Act and ordinarily follow the event. Since the appellant made out a case for the site visit but failed to persuade the Court to review its ruling, the Court balanced the outcomes by ordering each party to bear their own costs of the application.
Legal principles established
#- The 'mistake' envisaged under Section 80 of the Civil Procedure Act and Order 45 is distinct from a mistake caused by an advocate, and a counsel's mistake does not constitute an error apparent on the face of the record warranting review.
- A court may order a site visit (locus in quo) under Order 18 Rule 11 and Order 40 Rule 10 of the Civil Procedure Rules to help determine the real issues in dispute.
- Costs follow the event but remain at the court's discretion under Section 27 of the Civil Procedure Act, and a party who succeeds on one issue and fails on another may be denied costs.
Court orders
#- 1.The Notice of Motion dated 29th May, 2023 partially allowed: the Deputy Registrar to conduct a site visit (locus in quo) on Kilifi/Mtwapa/1765 within 14 days to confirm the current status of occupation and prepare a report, with mention before the DR on 29th February, 2024 for directions on the site visit
- 2.The Court declined to review, vary or set aside Order Number (b) of the Ruling delivered on 8th March, 2023 based on the Doctrine of Lis Pendens under Section 52 of the Transfer of Property Act
- 3.The matter to be mentioned on 14th March, 2024 for directions on disposal of the pending appeal through the Record of Appeal dated 20th May, 2021 and Memorandum of Appeal dated 4th November, 2019 in accordance with Section 79B of the Civil Procedure Act and Order 42 Rules 11, 13 and 16 of the Civil Procedure Rules, 2010
- 4.Each party to bear their own costs
- On appeal from
- Resident Magistrate's Court at Mombasa
- RMCC No. 2324 of 2013
- Jurisdiction invoked
- Articles 47, 50 and 159 of the Constitution of Kenya, 2010; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Cap. 21; Order 45 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gichengo v Ndiva (Environment and Land Appeal 66 of 2021) [2024] KEELC 801 (KLR)", Case Analysis (2024). Ruling on Notice of Motion dated 29th May, 2023 in appeal from Mombasa RMCC No. 2324 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/801/eng@2024-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.