Barnabas East Africa v County Government of Mombasa & 2 others (Constitutional Petition 29 of 2022) [2024] KEELC 5753 (KLR)
The bottom line
#Once a Kenyan court delivers final judgment, it cannot order a site visit on the property - the winning party keeps its judgment intact.
What this practically means
#Executive summary
#Key legal issues
#Whether a post-judgment site visit can be ordered
It cannot; once judgment is delivered the court is functus officio and only execution-related matters remain
The Court traced the purpose of locus in quo visits under Order 18 Rule 11 and Order 40 Rule 10 of the Civil Procedure Rules, 2010 and Section 173 of the Evidence Act. A visit is to observe and inspect, is an exception rather than the rule, and should ordinarily occur before judgment with party consensus. Having pronounced final judgment awarding the Petitioner Kshs 27,150,000/- on 12th October 2023, the court had performed all its duties and the belated application was an afterthought.
The nature and purpose of a site visit
A site visit enables the court to inspect property in issue and observe the ground position, without adducing fresh evidence or filling gaps in the parties' evidence, lest the court turn itself into a witness
The Court relied on the definition of locus in quo and the authorities of Parkire Stephen Munkasio and Beatrice Nyongo Ndungu, which caution that courts do not go on fact-finding missions; the burden of proof lies on he who alleges and facts must be presented as evidence. The visit must be recorded as a report used in final decision-making.
Timing of a site visit
A site visit may take place at any time but at least before the court makes any pronouncement on the matter
The Court found the application, though potentially valuable, was made at the wrong time - at the tail end of proceedings after judgment. The Petitioner had won the judgment and risked losing its fruits through a visit that could turn against it.
Legal principles established
#- A court that has delivered final judgment becomes functus officio and cannot conduct a site visit or reopen the matter, save for orders concerning execution of the judgment
- A site visit (locus in quo) is for inspection and observation of matters on the ground, not a fresh evidence-gathering mission, and ordinarily takes place before judgment with the consensus of the parties
- A court may, of its own motion or at the request of a party, inspect property at any stage of the suit under Order 18 Rule 11 of the Civil Procedure Rules, 2010
Court orders
#- 1.The oral application made by the Petitioner on 5th June 2024 seeking the Court to conduct a site visit on the suit property is declined
- 2.The Court, having rendered a final decision through the Judgment delivered on 12th October 2023, remains functus officio except on issues of execution of the Judgment
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Environment and Land Court's residual jurisdiction over a concluded petition, including incidental applications under the Civil Procedure Act (Cap. 21), Civil Procedure Rules, 2010 (Order 18 Rule 11, Order 40 Rule 10) and Section 173 of the Evidence Act (Cap. 80)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Barnabas East Africa v County Government of Mombasa & 2 others (Constitutional Petition 29 of 2022) [2024] KEELC 5753 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5753/eng@2024-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.