Bemadafu v Njeka & 3 others (Environment & Land Case 64 of 2021) [2024] KEELC 5013 (KLR)
The bottom line
#A Kwale land dispute plaintiff failed to convince the court to visit the disputed plot, because competing occupation claims alone are not a special circumstance.
What this practically means
#Executive summary
#Key legal issues
#Whether a site visit / hearing at the locus in quo should be ordered
Refused; no special circumstances shown. Both parties claiming occupation and planting trees are ordinary pleaded issues, and the visit appears designed to help the plaintiff prove occupation
The court reviewed Order 18 Rule 11 and case law holding that locus visits are exceptional, that the court risks becoming a witness, and that visits should not fill evidentiary gaps. The pleadings disclosed only routine competing claims of occupation, insufficient to justify inspection.
Whether the Director of Surveys should identify beacons and occupants before hearing
Refused as premature; such a decision can only be made after parties adduce all their evidence, and the court may then invoke section 173(1) of the Evidence Act if needed
The court held that obtaining surveyor evidence before the parties close their cases would be premature. It reserved the option, once evidence is complete and before submissions, to exercise its extended statutory power to procure proper evidence if the ends of justice require.
Adequacy of the legal provisions invoked in the application
The court noted the application cited Order 45 (review) without identifying any order for review, Order 50 (computation of time) as irrelevant, and cited a non-existent section 63(f), but chose to decide on substantive justice
The court observed the application was not anchored on any apt provision but, applying the overriding objective, declined to dismiss it on technical grounds and instead determined it on its merits under Order 18 Rule 11 and the jurisprudence on locus visits.
Legal principles established
#- A visit to the locus in quo or inspection of property is the exception rather than the rule and the applicant must demonstrate special circumstances warranting it
- In an adversarial system each party must meet its burden of proof by placing material before the court; a party cannot use a site visit to help prove its own case
- The court retains power under section 173(1) of the Evidence Act to obtain proper evidence of its own motion after hearing the parties
Court orders
#- 1.The application dated 24/10/2023 is dismissed for lack of merit
- 2.The matter shall proceed for hearing as scheduled on 20th and 21st February 2024 in open court
- Jurisdiction invoked
- Order 18 Rule 11 of the Civil Procedure Rules (power of court to inspect), with application purportedly brought under Orders 45, 50 and 51 of the Civil Procedure Rules and Section 63(f) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bemadafu v Njeka & 3 others (Environment & Land Case 64 of 2021) [2024] KEELC 5013 (KLR)", Case Analysis (2024). Not stated in the ruling (Plaint dated 26/9/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5013/eng@2024-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.