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ELCDismissed· [2024] KEELC 6206 (KLR)

Kamunya (Suing as the administrator of the Estate of Peter David Kamunya Kiboi (Deceased) v Gichuhi; Registrar Kajiado Land Registry (Interested Party) (Environment & Land Case 640 of 2015) [2024] KEELC 6206 (KLR)

Environment and Land Court
8 July 2024
MOMogeni
2,499 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a land defendant's bid to have title documents scrutinised, ruling the application was a fishing expedition for evidence.

What this practically means

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Executive summary

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By a notice of motion dated 8 April 2024, the defendant in a land suit sought orders directing the Land Registrar for Kajiado and/or Ngong to produce for scrutiny the titles to parcels Ngong/Ngong 7722, 7723, 7724, 7725 and 7726 (registered in the name of the late Peter David Kamunya Kiboi) as they stood on 27 July 1988, and title 7721 as at 19 August 1988 and 9 June 2014; alternatively, that the parcels be measured on site against a 1985 mutation sketch by the Registrar or a court-appointed licensed surveyor, with the parties and their surveyors present, the report supplied to the defendant, and the application declared his further list of documents. The application was premised on an allegedly uncompleted 1988 land exchange, the respondent having died before execution. The respondent filed no response and the applicant filed no submissions. Mogeni J identified a single issue: whether the application was merited. Applying the interrogatory principles summarised in Tulip Properties and the scrutiny principles from election petition authorities, the court held the application was a fishing expedition. The defendant had not raised the issue at pre-trial, had not sought better particulars, and had not shown any difficulty or steps taken in obtaining the information from government offices. Order 3 Rule 2 does not empower the court to compel a party to produce evidence; courts cannot be used to ferret out evidence for parties. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the defendant was entitled to orders for production and scrutiny of titles and site measurement of the suit parcels

Holding

The application was not merited; it was a fishing expedition and outside the scope of Order 3 Rule 2

Reasoning

The court applied the principles on interrogatories from Tulip Properties and the scrutiny principles from election petition authorities. The defendant did not raise the issues at pre-trial, did not demonstrate difficulty obtaining the information, and did not show steps taken to obtain it from government offices. Allowing the prayers would amount to the court looking for evidence for the defendant, who remains free to call government officers as witnesses.

Legal principles established

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  • Scrutiny must not be used as a fishing expedition to discover new or fresh evidence; a party must be seized of its grounds, facts and evidence from the outset
  • Order 3 Rule 2 of the Civil Procedure Rules does not empower the court to compel a party to produce evidence for scrutiny
  • Courts cannot be used to allow parties to ferret out evidence; it is each party's responsibility to adduce its own evidence

Court orders

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  1. 1.This application is dismissed.
  2. 2.Costs of the Application to be in the cause.

Authorities

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Legislation

  • Civil Procedure RulesOrder 3 Rule 2(d); Order 51
  • Civil Procedure ActSections 1A, 1B, 3, 3A and 63(e)
  • Constitution of KenyaArticle 159
  • Environment and Land Court Rules (Legal Notice No. 5178 - Mutunga Rules)Rule 28

Cases cited (4)

  • Tulip Properties Limited v Mohamed Koriow Nur & Four Others
    [2007] eKLR
  • Mwahima Mwalimu Masudi v Independent Electoral and Boundaries & 3 Others
    [2017] eKLR
  • Philip Osore Ogutu vs. Michael Aringo & 2 other
    Busia High Court Election Petition No. 1 of 2013
  • Richard Kalembe Ndile vs. Patrick Musimba Mweu
    Election Petition No. 7 of 2013
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Article 159 of the Constitution (application brought under Order 3 Rule 2(d) and Order 51 of the Civil Procedure 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, "Kamunya (Suing as the administrator of the Estate of Peter David Kamunya Kiboi (Deceased) v Gichuhi; Registrar Kajiado Land Registry (Interested Party) (Environment & Land Case 640 of 2015) [2024] KEELC 6206 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6206/eng@2024-07-08

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