Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNairobi Environment & Land Court Case No. 1037 of 2015· [2024] KEELC 4170 (KLR)

Kwamboka v Water Resources Authority; Oasis Park Self-Help Group Suing Through John Mutinda & another (Interested Parties) (Environment & Land Case 128 of 2019) [2024] KEELC 4170 (KLR)

Environment and Land Court
22 May 2024
1,657 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan court allowed a landowner to call a Government Surveyor mid-hearing to map out a disputed riparian reserve along a river.

What this practically means

#

Executive summary

#
This is a ruling on the Plaintiff's Notice of Motion dated 9 October 2023 in an Environment and Land Court dispute at Machakos, in which Skeeter Kwamboka sought leave to call a Government Surveyor to give testimony on the original land map outlining the riparian reserve along the Sabaki River/Stream. The Defendant, the Water Resources Authority, and the 2nd Interested Party opposed the application, arguing that it was filed three years after close of pleadings, was an attempt to patch holes in the plaintiff's case exposed during cross-examination, and would prejudice them since the plaintiff had already testified and her documents were filed in 2019. The court framed a single issue: whether the plaintiff should be granted leave to call the Government Surveyor. Relying on Article 159(2)(d) of the Constitution, section 3 of the Environment and Land Court Act and section 3A of the Civil Procedure Act, the court found the fulcrum of the dispute was identification of the riparian reserve; that the Survey of Kenya is the custodian of maps and only the Government Surveyor could interpret them; and that the plaintiff had not closed her case, so no prejudice was demonstrated. The court allowed the application, noting the defendant and interested parties could cross-examine the surveyor and file their own maps. Costs were ordered in the cause.

Key legal issues

#
01

Whether leave should be granted to call a Government Surveyor as an expert witness mid-hearing

Holding

The application was allowed; the plaintiff's case was not closed and the surveyor's evidence would assist the court in identifying the riparian reserve

Reasoning

The court found the fulcrum of the dispute is identification of the riparian reserve along the Sabaki River/Stream. The Survey of Kenya is the custodian of maps and only the Government Surveyor can interpret them. Since the plaintiff had not closed her case, the defendant and interested parties could not demonstrate prejudice; they would have the opportunity to cross-examine the surveyor and file their own maps. The court exercised its discretion under the overriding objective and inherent powers.

p. 3

Legal principles established

#
  • Where a plaintiff has not closed her case, calling an expert witness from the Survey of Kenya, the custodian of maps, is not prejudicial to opposing parties who may cross-examine and file their own documents

Court orders

#
  1. 1.Leave granted to the Plaintiff to call the Government Surveyor to give testimony regarding the original land map outlining the riparian reserves in question
  2. 2.The Defendant and Interested Parties may file further documents including different maps, if need be
  3. 3.Costs in the cause

Authorities

#

Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure ActSection 3A
  • Environment and Land Court ActSection 3

Cases cited (7)

  • Susan Wavinya Mutavi v Isaac Njoroge & Another
    [2020] eKLR
  • Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & Another
    [2015] eKLR
  • Raila Odinga & Others v IEBC & 3 Others Supreme Court of Kenya Presidential Petitions No. 3, 4, 5/2013
    [2013] eKLR
  • Johana Kipkemei Too v Hellen Tum
    [2014] eKLR
  • Alfred Baya Msanzu v Kenya Ports Authority
    [2020] eKLR
  • Mansukhalal Jesang Maru v Frank Wafula
    [2021] eKLR
  • Alois Oceano D'sumba v Rajnikant Narshi Shah & Another
    [2017] eKLR
Jurisdiction invoked
Article 159(2)(d) of the Constitution; Section 3 Environment and Land Court Act; Section 3A Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kwamboka v Water Resources Authority; Oasis Park Self-Help Group Suing Through John Mutinda & another (Interested Parties) (Environment & Land Case 128 of 2019) [2024] KEELC 4170 (KLR)", Case Analysis (2024). Nairobi Environment & Land Court Case No. 1037 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4170/eng@2024-05-22

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