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ELCAllowedNotice of Motion dated 15th October, 2024 (full suit number not stated in judgment)· [2025] KEELC 3503 (KLR)

Mbiuva v Cabinet Secretary, Ministry of Lands and Housing & 5 others (Environment & Land Case 81 of 2019) [2025] KEELC 3503 (KLR)

Environment and Land Court
5 May 2025
EOE. O. Obaga
1,095 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Machakos land court allowed a late witness statement and ordered a site visit in a boundary dispute, stressing fairness over procedural technicalities.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court (Obaga J) on a Notice of Motion dated 15th October, 2024 by the Plaintiff/Applicant in a pending boundary dispute concerning the accuracy of Registry Index Map No. 10 for the Nziu Registration Area. The Plaintiff sought two substantive orders: that the court conduct a site visit to appreciate the boundary dispute on the ground, and that a further list of witnesses dated 4th October, 2024 together with the witness statement of Agnes Mbithe Nzioki be deemed duly filed and served, plus costs. The 5th and 6th Defendants opposed via grounds of opposition dated 30th January, 2025, arguing the application was an abuse of process designed to scuttle the hearing, that no reason was given for the late filing, and that it was prompted by the Plaintiff enjoying interlocutory injunctive orders; in submissions they characterised the application as an unmerited review. The Plaintiff's counsel explained he took over the case after the previous lawyer was appointed High Commissioner of Canada, and while reviewing the voluminous record before a scheduled hearing, filed the additional witness statement. Relying on Beatrice Ngonyo Ndungu v Samuel K. Kanyoro and the locus in quo principles in Cyrus Nyaga Kabute v Kirinyaga County Council quoting Fernandes v Noronha, the court framed two issues: whether the witness statement should be deemed filed, and whether the site should be visited. Finding counsel's conduct understandable, the evidence non-prejudicial since the case had not taken off, and a site visit necessary given the boundary nature of the dispute and the earlier blocked access road, the court allowed the application in terms of prayers 4, 5 and 6, including costs to the Plaintiff.

Key legal issues

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01

Whether the additional witness statement of Agnes Mbithe Nzioki should be deemed duly filed

Holding

The court allowed the deeming of the witness statement, finding counsel's action understandable given the change of advocates and the pending hearing date, and finding no prejudice to the Respondents.

Reasoning

The current counsel took over the case after the previous lawyer was appointed High Commissioner of Canada. While familiarising himself with the voluminous record before an already-scheduled hearing, he filed the additional witness statement on 4th October, 2024. The witness is the Plaintiff's spouse and the case had not yet taken off, so the Respondents would suffer no prejudice.

p. 3
02

Whether the court should conduct a site visit (locus in quo)

Holding

The court allowed the site visit because the dispute concerns a boundary and the impugned accuracy of RIM No. 10, and the access road to the Plaintiff's land had been blocked, making an on-the-ground appreciation necessary.

Reasoning

The pleadings reveal a boundary dispute concerning the accuracy of Registry Index Map No. 10 for the Nziu Registration Area, and the access road to the Plaintiff's land had been blocked at some stage requiring court intervention. In such circumstances a site visit is important for the court to appreciate what is on the ground.

p. 3

Legal principles established

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  • When a court visits the locus in quo it must make a note of what took place during the visit, which should be agreed to by advocates or read out to them, and any witness who points out anything must be recalled to give evidence of what occurred.
  • A court may deem an additional witness statement duly filed where its introduction causes no prejudice and the suit is yet to be heard.

Court orders

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  1. 1.The court to conduct a site visit for purposes of better appreciating the boundary dispute vis-à-vis the impugned accuracy of Registry Index Map (RIM) No. 10 relating to the Nziu Registration Area (prayer 4 allowed)
  2. 2.The Plaintiff's further list of witnesses dated 4th October, 2024 and the attached witness statement for AGNES MBITHE NZIOKI deemed as duly filed and served (prayer 5 allowed)
  3. 3.Costs of the application awarded to the Plaintiff/Applicant (prayer 6 allowed)
Jurisdiction invoked
Inherent powers of the court over its own suit and case management (discretionary interlocutory application in a pending land suit)

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, "Mbiuva v Cabinet Secretary, Ministry of Lands and Housing & 5 others (Environment & Land Case 81 of 2019) [2025] KEELC 3503 (KLR)", Case Analysis (2025). Notice of Motion dated 15th October, 2024 (full suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3503/eng@2025-05-05

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