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ELCAllowedPetition (application dated 29th February 2024) - ELC Malindi· [2024] KEELC 7009 (KLR)

Likizo Ltd v Mumbo & 5 others (Environment & Land Petition 19 of 2017) [2024] KEELC 7009 (KLR)

Environment and Land Court
24 October 2024
MNMwangi Njoroge
2,393 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Malindi court ruled that a disputed land title case must be tested through live witness testimony, not just sworn written statements.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Malindi (Mwangi Njoroge J) on a notice of motion dated 29 February 2024 in a petition remitted by the Court of Appeal in CA No E005 of 2020 for re-hearing by a judge other than Olola J. The remitted issue concerns the legality and validity of land title allocations over parcel Chembe/Kibabamshe/407, and the constitutionality of the 2nd respondent's (National Land Commission) actions under Gazette Notice no 6866. The petitioner sought directions that the petition be heard by viva voce evidence, with parties filing witness statements and documents. The 1st respondent, the 2nd respondent and the interested party opposed, urging disposal on affidavit evidence, noting that the original petition was heard on affidavits without objection and that no Court of Appeal directive required oral evidence. The court held that no rule confines constitutional petitions to affidavit evidence; where facts are contentious - particularly competing claims of title whose legality must be tested - viva voce evidence with cross-examination is the fairest mode, relying on Fanikiwa Ltd (SC) and Kibos Distillers (CA) plus comparative Zimbabwean and Lesotho authority. It further held that a fresh hearing implies a right to issue fresh directions. The application was allowed in terms of prayers 1.1, 1.2 and (2); costs were in the cause, and the matter was set for pretrial conference on 26 November 2024.

Key legal issues

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01

Mode of hearing of a remitted constitutional petition

Holding

The contentious issue of legality and validity of competing titles over Chembe/Kibabamshe/407 should be determined by viva voce evidence, not on affidavit evidence alone

Reasoning

The remitted issue is factual and contentious, involving competing claims of title whose legality must be tested through calling and cross-examining witnesses. Precedent (Fanikiwa; Kibos) establishes that where facts are not common cause, viva voce evidence is required. The Court of Appeal's direction that a judge other than Olola J hear the matter implies the re-hearing court is free to issue fresh procedural directions under Rule 20(3). Delay concerns can be managed by strict compliance with directions, and parties may adopt affidavits subject to cross-examination.

Legal principles established

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  • There is no hard and fast rule that affidavit evidence is the sole mode of proof in constitutional petitions; they may be heard by viva voce evidence, submissions or affidavit evidence
  • A fresh hearing following remittal entitles the court hearing the matter afresh to issue fresh directions as to procedure

Court orders

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  1. 1.Application dated 29th February 2024 allowed in terms of prayers Nos 1.1, 1.2 and (2)
  2. 2.The petition to be heard by way of viva voce evidence
  3. 3.Parties to file witness statements and documents for trial
  4. 4.Matter to be mentioned on November 26, 2024 for a pretrial conference for issuance of more specific directions as to hearing
  5. 5.All parties to examine their records and attend the pretrial session; petitioner not precluded from filing documents allowed in the motion before then
On appeal from
Court of Appeal
CA No E005 of 2020
Jurisdiction invoked
Article 67 of the Constitution; Rule 20 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules; Order 51 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, "Likizo Ltd v Mumbo & 5 others (Environment & Land Petition 19 of 2017) [2024] KEELC 7009 (KLR)", Case Analysis (2024). Petition (application dated 29th February 2024) - ELC Malindi. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7009/eng@2024-10-24

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