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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 5173 (KLR)

Gerad v Njenga (Civil Appeal 2 of 2022) [2024] KEELC 5173 (KLR)

Environment and Land Court
4 July 2024
LKL. KOMINGOI
2,288 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kajiado court allowed new survey evidence in a land boundary appeal, ordering an official survey report within 45 days.

What this practically means

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Executive summary

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This was a Notice of Motion dated 12th September 2023 by the Appellant, Suldana Habat Gerad, in an appeal pending before the Environment and Land Court at Kajiado against a decision of a learned trial magistrate delivered on 4th February 2021 concerning plots 725 Business and 413 Residential at Olekasasi Trading Centre. The Appellant sought leave to file and adduce a new Survey Report dated 20th April 2023 as additional evidence, and in the alternative, an order directing the County Director of Survey – Kajiado to prepare a comprehensive survey report of the suit properties. The application was opposed, the Respondent contending the evidence could have been obtained with reasonable diligence at trial and that she should be left to enjoy the fruits of her judgment. The court framed the issue as whether the application was merited, considered Section 78 of the Civil Procedure Act, Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules, and applied the principles in Mohammed Abdi Mohamud and Florence Akinyi Odula. Noting the trial magistrate had found a boundary dispute existed but the County Surveyor's undated report was ambiguous and inconclusive, the court was persuaded the new evidence would assist determination of the dispute to finality. It directed the County Director of Survey, Kajiado County Government, to present a final comprehensive survey report of both plots within 45 days, with liberty to cross-examine, and ordered the Appellant to bear the costs of the application. Judgment was delivered virtually at Kajiado on 4th July 2024 by L. Komingoi, Judge.

Key legal issues

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Whether leave should be granted to adduce additional evidence on appeal

Holding

The application was allowed; the court found the new evidence would assist in determining the dispute to finality and granted the alternative prayer for a conclusive survey report

Reasoning

The court considered Section 78 of the Civil Procedure Act and Order 42 Rules 27, 28 and 29, and applied the principles in Mohammed Abdi Mohamud and Florence Akinyi Odula v. Akamba Public Road Services Ltd. It found that the trial court's boundary dispute was never conclusively resolved by the County Surveyor's undated and ambiguous report, and that a comprehensive survey report would assist the appellate court to determine the dispute finally.

p. 5

Legal principles established

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  • An appellate court may allow additional evidence where the court to which the appeal is preferred requires a document to be produced to enable it to pronounce judgment or for any other substantial cause, applying the Mohammed Abdi principles

Court orders

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  1. 1.That the County Director of Survey Kajiado County Government is hereby directed to present a final comprehensive, detailed and conclusive Survey Report in respect to the suit property herein 725 Business Ole Kasasi Trading Centre and that of 413 Residential Ole Kasasi Trading Centre within 45 days from the date of this Ruling
  2. 2.Each party shall be at liberty to cross-examine on the same if need be
  3. 3.That costs of this application be borne by the Appellant

Authorities

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Legislation

  • Civil Procedure ActSection 78(1)(d)
  • Civil Procedure Rules 2010Order 42 Rules 27, 28, 29
  • Civil Procedure Rules 2010Order 51
  • Environment & Land Court Practice Directions 2011Rule 41
  • Court of Appeal RulesRule 29(1)(b)
  • Evidence ActSection 35(1)

Cases cited (15)

  • Republic v. Kenya School of Law & 2 Others Exparte Juliet Wanjiru Njoroge & 5 others
    (2015) eKLR
  • Woburn Estate Limited v. Margaret Bashforth
    (2016) eKLR
  • Refrigeration and Kitchen utensils Ltd v. Gulabachand Popattal Shah & Another
    Miscellaneous Application No. 39 of 1990
  • Sam Nyamweya & 3 Others v. Kenya Premier League Limited & 2 Others
  • Charles Mutuku v. Christopher Nzioki & Another
    (2019) eKLR
  • Azzuri Limited v. Pink Properties Ltd
    (2018) eKLR
  • Joseph Mburugu v. Silas Mwiti Mwigika
    (2022) eKLR
  • Elizabeth Wambui Githinji & 29 Others v. KURA & 4 Others
    (2019) eKLR
  • Lwangu v. Ndote
    (2021) KEELC 2 KLR
  • Mary Wairimu Musindi v. Linet Amuli & 4 Others
    (2022) eKLR
  • Equity Bank Ltd v. West Link Mbo Limited
    (2013) eKLR
  • Timau Flour Limited v. Elijah Ndungu Kamau
    (2021) eKLR
  • Florence Akinyi Odula v. Akamba Public Road Services Ltd & Another
    (2014) eKLR
  • Mohammed Abdi Mohamed v. Ahmed Abdullahi Mohammed & 3 Others
    (2018) eKLR
  • Wanja v Saikwa
    (1984) 275
On appeal from
Magistrates' Court (Learned Trial Magistrate)
Jurisdiction invoked
Section 78(1)(d) of the Civil Procedure Act, Order 42 and Order 51 of the Civil Procedure Rules, rule 41 of the Environment & Land Court Practice Directions 2011 and rule 29(1)(b) of the Court of Appeal Rules

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, "Gerad v Njenga (Civil Appeal 2 of 2022) [2024] KEELC 5173 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5173/eng@2024-07-04

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