Seva & 441 others v Criticos & 5 others (Land Case Petition E002 of 2024) (Environment and Land) [2024] KEELC 7112 (KLR)
The bottom line
#Kenya's Environment and Land Court will let this land petition proceed through live witness testimony, but refused a site visit because courts don't do fact-finding missions.
What this practically means
#Executive summary
#Key legal issues
#Whether viva voce evidence should be directed despite earlier directions for affidavit evidence
Yes - conflicting evidence touching on credibility of documents sworn by the 1st Respondent justifies cross-examination, and no prejudice arises as the hearing had not commenced
Rule 20(1)(a) of the Mutunga Rules makes affidavit evidence the default, but permits the court to direct otherwise. Where the 1st Respondent has disputed key letters and an affidavit, their credibility can only be tested by cross-examination. Article 50(1) guarantees a fair hearing. Since the hearing had not commenced, no prejudice would be suffered by allowing viva voce evidence.
Whether a site visit (locus in quo) should be ordered
No - the site visit would not yield admissible evidence and the court cannot conduct a fact-finding mission
While site visits may from time to time assist a court, facts must be placed before the court as evidence by the parties, who bear the burden of proof. Following Ohungo J. in Beatrice Ngonyo Ndungu and Parkire Stephen Munkasio, the court held that where a site visit cannot yield admissible evidence, it serves no useful purpose and the judge would merely be a tourist.
Legal principles established
#- A site visit is justified only where it can yield admissible evidence to assist the court reach a just decision; otherwise the judge is no better than a tourist
- In an adversarial system the burden of proof rests on the party who alleges; the court does not go out to seek facts on its own
Court orders
#- 1.The orders issued by this court on 12th March 2024 are varied to allow the main Petition to be canvassed by way of viva voce evidence
- 2.The Petitioners to file and serve their list of witnesses, witness statements and bundle of documents within 21 days
- 3.The Respondents granted 21 days upon service to file and serve their list of witnesses, witness statements and bundle of documents
- 4.The request for a visit of the locus in quo is declined
- 5.The matter to be mentioned virtually in the next term to confirm compliance and further directions
- 6.Each party to bear own costs of the application
- Jurisdiction invoked
- Article 50(1) of the Constitution; Rule 20(1)(a) of the Mutunga Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Seva & 441 others v Criticos & 5 others (Land Case Petition E002 of 2024) (Environment and Land) [2024] KEELC 7112 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7112/eng@2024-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.