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ELCOtherPetition (Naivasha ELCC), application for cross-examination of deponents of the 5th, 6th and 7th Respondents' replying affidavits· [2025] KEELC 6261 (KLR)

Wambugu v Chief Land Registrar & 6 others; Agricultural Development Corporation (Interested Party) (Environment and Land Petition E005 of 2024) (Environment and Land) [2025] KEELC 6261 (KLR)

Environment and Land Court
25 September 2025
920 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court paused a decision on cross-examining affidavit witnesses until it first settles whether a parallel land case makes the petition duplicative.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Naivasha in a land petition in which the Applicants sought to cross-examine the deponents to replying affidavits filed by the 5th, 6th and 7th Respondents. The court, per M.C. Oundo J, noted that the mode of disposal of the Petition had been adopted by consent under rule 20(1) of the Mutunga Rules, which permits hearing by affidavit evidence, written submissions or oral evidence. Applying the Supreme Court's decision in Fanikiwa Limited v Sirikwa Squatters Group, the judge acknowledged that hotly contested allegations of fraud and illegality in the Petition warranted viva voce evidence to test the veracity of the affidavits. However, the Respondents objected that the application was an attempt to steal a match and to circumvent a pending suit, Naivasha ELCLC No. E053 of 2024, which concerns the competing roots of the same titles between the Settlement Fund Trustee and the Agricultural Development Corporation. The court held that allowing cross-examination before resolving whether the Petition was sub judice that suit would offend the sub judice rule and the overriding objective in section 1B of the Civil Procedure Act. The judge stayed determination of the application, directed the parties to file concurrent written submissions within 14 days on whether the Petition is sub judice Naivasha ELCLC No. E053 of 2024, and ordered a mention to confirm compliance before a comprehensive ruling. No costs order was made. The application was not finally allowed or dismissed.

Key legal issues

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01

Whether cross-examination of deponents is warranted in a petition disposed of by consent by way of affidavit evidence

Holding

Contested allegations of fraud and illegality may justify viva voce evidence and cross-examination to resolve disputed facts, but the court retains discretion

Reasoning

The court acknowledged the consent directions under rule 20(1) of the Mutunga Rules but found that the Petition's paragraphs containing allegations of fraud and illegality were heavily contested by the Respondents, providing a basis to allow cross-examination to separate truth from falsehood. However, the court did not finally exercise that discretion because of the pending parallel suit.

p. 3
02

Whether hearing the Petition to the point of cross-examination would offend the sub judice rule given Naivasha ELCLC No. E053 of 2024

Holding

This question should first be determined before the cross-examination application is decided; determination of the application was stayed pending submissions

Reasoning

The court noted that Naivasha ELCLC No. E053 of 2024, commenced by plaint, concerns the competing roots of the same titles, and that the Petitioner had substantively responded to it. Allowing parallel proceedings on the same competing claims would affront the sub judice rule and violate the efficient use of judicial resources under section 1B of the Civil Procedure Act.

Legal principles established

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  • Hearing of a petition shall be by affidavit evidence, written submissions or oral evidence unless the Court otherwise directs
  • Where competing claims of land ownership are disputed, viva voce evidence with cross-examination is required to test affidavit evidence

Court orders

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  1. 1.Determination of the application is stayed pending address by the parties on whether the Petition is sub judice Naivasha ELCLC No. E053 of 2024
  2. 2.Parties to file respective written submissions concurrently within 14 days
  3. 3.Matter to be mentioned to confirm compliance and thereafter a date taken for delivery of a comprehensive ruling
Jurisdiction invoked
Mutunga Rules (Supreme Court Rules) rule 20(1); Civil Procedure Act section 1B (overriding objective) - original petition jurisdiction of the Environment and Land Court

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, "Wambugu v Chief Land Registrar & 6 others; Agricultural Development Corporation (Interested Party) (Environment and Land Petition E005 of 2024)  (Environment and Land) [2025] KEELC 6261 (KLR)", Case Analysis (2025). Petition (Naivasha ELCC), application for cross-examination of deponents of the 5th, 6th and 7th Respondents' replying affidavits. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6261/eng@2025-09-25

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