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ELCDismissedNotice of Motion dated 18th February 2025 (arising from a suit over Njia/Cia Mwendwa/3090 and Njia/Cia Mwendwa/3460)

Mwenda (Suing by his Next Friend Jerusha Kanario Mwenda) v Mioro & another (Environment & Land Case E005 of 2023) [2025] KEELC 3282 (KLR)

Environment and Land Court
27 March 2025
6,090 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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A Kenyan land court dismissed a claim that a court officer's site visit report was biased, ruling that vague accusations without evidence or on-site objections cannot stand.

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 Meru (Oguttu Mboya, J) on a Notice of Motion dated 18th February 2025 by the Plaintiff/Applicant, Jerusha Kanario Mwenda, seeking to strike out a scene visit report dated 18th July 2024 prepared by the Deputy Registrar (Hon. E.W Ndegwa) pursuant to a court order of 1st July 2024, and for a fresh site visit by an independent officer, on grounds that the Deputy Registrar was biased and that her report prejudiced the applicant in respect of suit properties Njia/Cia Mwendwa/3090 and 3460. The 1st Respondent opposed, asserting the visit was conducted in the presence of all parties and advocates. The court framed two issues: whether bias/lack of impartiality was established, and whether the right to fair hearing and fair trial was breached. Applying the objective 'reasonable apprehension of bias' test as set out in Standard Chartered Financial Services v Manchester Outfitters, and the burden-of-proof principles in Dr. Samson Gwer v KEMRI, the court found the bias allegations generalized and unsubstantiated. Crucially, the applicant's advocate, Mr. Brian Mwenda, was present at the locus in quo, raised no objection, and did not swear an affidavit, justifying an adverse inference. On the second issue, the court held that the Deputy Registrar was mandated only to gather data on the status of the properties, not to conduct any hearing or trial, so no right to fair hearing under Article 50 was infringed; further, citing Kenneth Nyaga Mwige v Austin Kiguta, the report has no evidential value until formally produced and proved, and remains open to objection and cross-examination. The application was dismissed with costs to the 1st Defendant/Respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plea of bias and lack of impartiality against the Honourable Deputy Registrar has been established or otherwise
  2. 2.Whether the applicant's right to fair hearing and fair trial has been breached, violated and or infringed upon, either as alleged or at all

Key legal issues

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01

Whether the plea of bias and lack of impartiality against the Deputy Registrar was established

Holding

Not established; the allegations were generalized without particulars, and no objection was raised during the site visit in the presence of the applicant's advocate

Reasoning

The applicant herself sought the site visit order and its terms of reference were circumscribed by the judge to gathering data on the status of the two properties. The Deputy Registrar complied with the orders, visited in the presence of all parties and advocates, and within the set timeline. The applicant's counsel present at the locus raised no objection and did not swear an affidavit, warranting an adverse inference. Citing Standard Chartered Financial Services v Manchester Outfitters and Dr. Samson Gwer v KEMRI, the court held bias allegations require cogent proof and cannot rest on innuendo.

p. 7
02

Whether the applicant's right to fair hearing and fair trial was breached

Holding

No breach; the Deputy Registrar conducted no hearing or trial, and the report has no evidential status until proved or objected to in the course of the trial

Reasoning

The right to fair hearing can only be breached by a court or tribunal tasked to conduct a hearing or trial. The Deputy Registrar's mandate was confined to collecting data on developments, possession and occupation. The report is not an exhibit and can only be relied upon subject to objection and cross-examination, per Kenneth Nyaga Mwige v Austin Kiguta on the distinction between marking for identification and proof of documents. The allegations were therefore premature and misconceived, amounting to a red herring.

p. 11

Legal principles established

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  • Allegations of bias against a judicial officer must be substantiated with plausible, cogent and credible evidence, not generalized assertions, and the burden lies on the applicant
  • A party who fails to object at the locus in quo through counsel, and whose counsel does not swear an affidavit, invites an adverse inference
  • A Deputy Registrar conducting a site visit under a judge's order performs a data-gathering function, not a hearing, and cannot be said to breach the right to fair hearing or fair trial

Court orders

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  1. 1.That the Application dated 18th February 2025 be and is hereby dismissed
  2. 2.That costs of the Application be and are hereby awarded to the 1st Defendant/Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
First-instance civil jurisdiction of the Environment and Land Court over the suit properties; the application sought review/striking out of a scene visit report ordered by the court on 1st July 2024

Relief refused

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Striking out of the scene visit report dated 18th July 2024 conducted pursuant to the court's order of 1st July 2024

The applicant failed to substantiate the plea of bias; allegations were generalized without particulars and no objection was raised at the locus in quo by her advocate, who also did not swear an affidavit

p. 7

An order for a new site visit by an independent officer or a different deputy registrar

No basis established; the Deputy Registrar complied with the judge's orders and no right to fair hearing or trial was breached

p. 11

Costs

Costs of the Application awarded to the 1st Defendant/Respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That the Application dated 18th February 2025 be and is hereby dismissed.
p. 11Disposition - dismissal of the application
That costs of the Application be and are hereby awarded to the 1st Defendant/Respondent.
p. 11Costs order
the applicant herein has neither established nor demonstrated the plea of bias and lack of impartiality; nor has the applicant established any breach/violation of her right to fair hearing or fair trial.
p. 11Conclusion on both issues
proving bias could not be achieved by throwing around and or propagating generalized allegations, either in the manner posited or at all
p. 6Standard for substantiating bias
Until a document marked for identification is formally produced, it is of very little, if any, evidential value.
p. 10Evidential status of the site visit report (quoting Kenneth Nyaga Mwige v Austin Kiguta)

Issues in the judgment

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minor

The heading opening the judgment body reads 'Plaintifi/Applicant' has sought reliefs but the caption in paragraph 2 says 'Vide Notice of Motion Application dated the 18th of February 2025, the Plaintifi/Applicant' - the deponent of the supporting affidavit is Jerusha Kanario Mwenda while the same surname appears for an advocate, which the judgment does not clarify; case title/number of the principal suit is not stated in the extracted judgment

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, "Mwenda (Suing by his Next Friend Jerusha Kanario Mwenda) v Mioro & another (Environment & Land Case E005 of 2023) [2025] KEELC 3282 (KLR)", Case Analysis (2025). Notice of Motion dated 18th February 2025 (arising from a suit over Njia/Cia Mwendwa/3090 and Njia/Cia Mwendwa/3460). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3282/eng@2025-03-27

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