Murage v Katita & another (Environment and Land Case 6 of 2024) [2025] KEELC 5736 (KLR)

Gathuri, a registered valuer with COG Consultants Limited. He deposes that nearly five years have since lapsed since the preparation of the said report, and owing to the considerable lapse of time and prevailing market fiuctuations, the report no longer accurately refiects the present value of the suit property. 3. He further states that the fresh valuation is necessary to aid the Court in fairly determining damages for loss of bargain, a substantive prayer in the Plaint, and that the updated report is merely supplementary, not intended to reopen the trial or introduce new matters outside the pleadings. The Plaintifi maintains that no prejudice will be occasioned to the Defendants, who will retain the right to interrogate and cross-examine the valuer on the contents of the report. 4. Having considered the Notice of Motion, the supporting afidavit, and the applicable law, the Court is guided by Sections 1A and 1B of the Civil Procedure Act, which encompasses the overriding objective of the Court to facilitate the just, expeditious, proportionate, and afiordable resolution of disputes. Article 159(2)(d) of the Constitution further commands courts to administer justice without undue regard to procedural technicalities. The power vested in the Court under Section 3A of the Civil Procedure Act to make such orders as may be necessary for the ends of justice is wide enough to accommodate the present application, whose sole aim is to provide the Court with up-to-date evidence of the property’s value for a just determination of the issues at hand. The Plaintifi’s main suit includes a claim for damages for loss of bargain, making the current valuation of the suit property material evidence. 5. The Court of Appeal observed in Trust Bank Limited v Amalo Company Limited [2003] eKLR, that: “ A court must allow evidence that enables it to reach a fair and just decision, provided that in so doing no party is prejudiced beyond what can fairly be remedied by an opportunity to be heard on that evidence.” In the instant suit, the Defendants will have an opportunity to cross-examine the valuer, if they so wish and no unfair prejudice has been demonstrated. 6. Further, this Court notes that the intended update is not tantamount to reopening the Plaintifi’s case or supplementing his pleadings with new facts, but simply ensures that the Court is not left to rely on an outdated assessment. The purpose of adducing expert valuation evidence is to assist the Court to arrive at a fair assessment of damages, and where the evidence already on record has become stale due to the passage of time, a supplementary valuation may be allowed in the interest of justice. 7. This approach is consistent with the decision in John Karanja Njenga v Kenya Commercial Bank Limited [2019] eKLR, where the Court permitted an updated valuation, holding that: “ A valuation, by its very nature, is time-bound and the court must be guided by the most accurate and recent assessment to avoid rendering a decision based on speculative figures.” 8. In the present case, I find that the Plaintifi has demonstrated suficient cause for the orders sought. The Defendants have not shown any prejudice that cannot be remedied by the opportunity to contest or test the evidence through cross-examination. In line with the overriding objective and the duty of the Court to do substantive justice, I am persuaded that the prayers sought are merited. 9. Accordingly, the court finds that the plaintifi’s application is merited and makes the following orders: a. Leave is hereby granted to the Plaintifi to file and serve a current valuation report of Land Parcel Kajiado/Kaputiei North/1220 within sixty (60) days of this ruling; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5736/eng@2025-07-31 2

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10. b. Upon filing of the updated valuation report, the Defendants shall be at liberty to request for the summoning of the valuer for purposes of cross-examination on the contents of the report, should they so desire; c. The costs of this application shall abide the outcome of the main suit. It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 31ST DAY OF JULY 2025. M.D. MWANGI JUDGE In the virtual presence of: N/A by the Parties Court Assistant: Edwin https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5736/eng@2025-07-31 3

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