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ELCPartially AllowedNot stated in the excerpt (petition concerning LR No. 13449 Kwale Diani Beach Block)· [2025] KEELC 3348 (KLR)

Vicros Holdings Limited v Ngeno & 4 others; Shelly Holdings Limited (Interested Party) (Environment & Land Petition E04 of 2023) [2025] KEELC 3348 (KLR)

Environment and Land Court
24 April 2025
4,024 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kwale land dispute heading for judgment was sent back for witnesses to testify in person because fraud claims and conflicting title documents could not be settled on paper alone.

What this practically means

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Executive summary

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The Petitioner, Vicros Holdings Ltd, claims to be the registered proprietor of LR No. 13449 Kwale Diani Beach Block, having allegedly purchased it in 1988 from the late Jonathan Kimelet Ng'eno through its sister company Shelly Holdings Ltd (Interested Party). It complains that the 1st Respondent, the deceased's widow, and her agents have invaded the property, and it seeks declarations, certiorari quashing two related grants (CR 72707 and CR 72708) in the names of the 4th and 5th Respondents, an injunction, prohibition, eviction and damages. Before the scheduled judgment date, the 1st Respondent applied to arrest judgment and to have the petition heard by viva voce evidence, citing contested facts, allegations of fraud, inconsistencies in the Petitioner's documents, and DCI investigation findings requiring cross-examination. The Petitioner opposed the application as an abuse of process. The court (A.E. Dena, J) held that although the application cited inapposite provisions (Order 40 CPR), it could be considered on substance under Sections 1A, 1B and 3A of the Civil Procedure Act and Article 159(2)(d). Applying Rule 20 of the Mutunga Rules and authorities including the Supreme Court's decision in Uasin Gishu Memorial Hospital, the court found that the disputed ownership and fraud allegations required oral evidence and cross-examination. The application was allowed to the extent that the suit shall proceed by viva voce evidence, with costs of the application to the Petitioner, a mention on 3/6/2025, and leave to appeal granted if required.

Key legal issues

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01

Whether a petition that was directed to be disposed of by affidavit evidence and written submissions may nonetheless be converted to a viva voce hearing before judgment is delivered.

Holding

Yes. Rule 20 of the Mutunga Rules permits hearing by oral evidence on application or on the court's own motion, and the court's discretion is not extinguished by prior directions or the imminence of judgment.

Reasoning

The court noted the application was grounded partly on Order 40 CPR which was inapposite, but proceeded on Sections 1A, 1B, 3A of the Civil Procedure Act and Article 159(2)(d). Applying Rule 20(3) and (4) and comparative and domestic authorities, it found highly contested facts - allegations of fraud, conflicting grants and disputed chronology - that could only be tested through oral evidence and cross-examination, including of the 2nd Respondent's deponent and potentially the DCI.

02

Whether the application to arrest judgment and convert the petition to oral hearing was an abuse of process given that directions had been issued and parties had filed submissions.

Holding

No. Substantive justice prevails over procedural technicality, and the timing of the application does not defeat the court's discretion where evidence is likely to assist the court to arrive at a decision.

Reasoning

The court held that the evidence contemplated by Rule 20(3) and (4) need not be new evidence, and that a party is not barred from seeking oral hearing because directions were previously issued. It also declined to strike out the 2nd Respondent's late replying affidavit as it would be drastic to do so, emphasising the court's duty to guide parties toward fair and just resolution.

p. 7

Legal principles established

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  • Under Rule 20 of the Mutunga Rules a petition may be heard by affidavits, written submissions or oral evidence, and any party may apply for it to be heard viva voce; the stage at which such an application is made does not bar the court's discretion where justice requires oral evidence.
  • Where facts in a constitutional petition are substantially contested, particularly allegations of fraud which must be proved to a standard higher than a balance of probabilities, the matter should be heard by viva voce evidence.
  • Directions on the filing of submissions are not cast in stone; a court retains discretion to direct oral evidence in the interest of a just resolution, pursuant to Sections 1A, 1B and 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution.

Court orders

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  1. 1.The application dated 1st October 2024 is allowed to the extent that the hearing of the suit shall proceed by way of viva voce evidence
  2. 2.The Petitioner shall be entitled to the costs of the application to be borne by the Applicant
  3. 3.The matter shall be fixed for Mention before the ELC Judge in Kwale on 3/6/2025 for further directions
  4. 4.Leave to appeal the ruling is granted if required
Jurisdiction invoked
Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (Mutunga Rules), Rule 20; Civil Procedure Act Sections 1A, 1B and 3A

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, "Vicros Holdings Limited v Ngeno & 4 others; Shelly Holdings Limited (Interested Party) (Environment & Land Petition E04 of 2023) [2025] KEELC 3348 (KLR)", Case Analysis (2025). Not stated in the excerpt (petition concerning LR No. 13449 Kwale Diani Beach Block). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3348/eng@2025-04-24

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