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ELCDismissedELC Case (Mombasa) – Notice of Motion dated 18th July 2024 in the main suit· [2025] KEELC 1010 (KLR)

D’Souza & 2 others v Khansa Developers Limited & another (Civil Suit E005 of 2024) [2025] KEELC 1010 (KLR)

Environment and Land Court
5 March 2025
SKS. M. Kibunja
1,787 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused a site visit in a property damage dispute, saying courts only inspect land after evidence is heard, not before.

What this practically means

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Executive summary

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The plaintiffs filed a notice of motion dated 18th July 2024 under sections 1A, 1B, 3 and 63 of the Civil Procedure Act and Order 18 Rule 11 and Order 51 Rule 1 of the Civil Procedure Rules 2010, seeking an order that the court conduct a site visit on property known as Mombasa/Block XXI/143 to ascertain its factual status. Supported by the affidavit of Angelina D'Souza, the application alleged that extensive cracks developed on the plaintiffs' land due to the 1st defendant's construction of a multi-storey building, including excavation that led to demolition of the plaintiffs' perimeter wall and toilets, and that a visit would help the court understand the parties' expert evidence as the plaintiffs planned to rebuild. The 1st defendant opposed through the replying affidavit of Sammy Kamuio Mukuri, contending that the building was condemned, that proximity and damage were matters for pleading and expert testimony, that proof was the plaintiffs' burden, and that a site visit would waste judicial time. The court framed two issues: whether the plaintiffs had made out a reasonable case for a site visit at that stage, and costs. Relying on Masila v Ndolo and Ugandan authorities on locus in quo visits, the court held that such visits are exceptional, serve to clarify evidence rather than fill gaps, and should not occur before factual evidence is presented. Since the main suit had not commenced, the application was premature and dismissed, with costs in the cause under section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether a site visit should be ordered at the interlocutory stage

Holding

No – the application is premature as the hearing has not commenced and the matters to be observed should crystallise during evidence.

Reasoning

Order 18 Rule 11 empowers the court to inspect property at any stage, but superior court authority holds that a locus visit is exceptional and serves to clarify evidence already given, not to fill gaps or collect evidence. The matters plaintiffs wanted observed (proximity, excavation depth, cracks) are best captured in expert reports filed, served and subjected to cross-examination; a visit before evidence would risk the court becoming a witness.

p. 4
02

Costs of the application

Holding

Costs in the cause despite the plaintiffs' failure.

Reasoning

Section 27 of the Civil Procedure Act provides that costs follow the event unless otherwise ordered for good cause. The court found it fair and just that costs of the application be in the cause, notwithstanding that the plaintiffs failed in their quest.

p. 4

Legal principles established

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  • A site visit (locus in quo) is the exception rather than the rule and requires special circumstances; its purpose is to help the court understand evidence adduced, not to collect missing evidence.
  • The court should not visit the locus before a reasonable basis has been made through factual evidence presented before it.

Court orders

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  1. 1.The plaintiffs' notice of motion dated 18th July 2024 is without merit.
  2. 2.The said application is dismissed.
  3. 3.Costs be in the cause.

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3 and 63
  • Civil Procedure Actsection 27
  • Civil Procedure Rules 2010Order 18 Rule 11
  • Civil Procedure Rules 2010Order 51 Rule 1

Cases cited (4)

  • Masila versus Ndolo (Enviromental and Land Originating Summons E003 of 2022)
    [2023] KEELC 21474 (KLR) (1 November 2023) (Ruling)
  • E. Kangye v E. Bwana Kampala HCCS No. 38 of 1989
  • Zziwa Ssalongo & Another v Kafumbe High Court Kampala CA no. 330 of 2012
  • Yeseri Waibi v Edisa Lusi Byandala [1982] HCB
    [1982] HCB
Jurisdiction invoked
Order 18 Rule 11 of the Civil Procedure Rules 2010; sections 1A, 1B, 3 and 63 of the Civil Procedure Act

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, "D’Souza & 2 others v Khansa Developers Limited & another (Civil Suit E005 of 2024) [2025] KEELC 1010 (KLR)", Case Analysis (2025). ELC Case (Mombasa) – Notice of Motion dated 18th July 2024 in the main suit. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1010/eng@2025-03-05

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