[2023] KEELC 19198 (KLR)
The court held that in the adversarial system of justice, it is the responsibility of the parties to prove their allegations, and the burden of proof does not shift to the court. The applicant, alleging fraud, sought the court's assistance in obtaining evidence by compelling the DCI to investigate and report on the...
Source-derived case information.
- Citation
- [2023] KEELC 19198 (KLR)
- Parties
- Plaintiff: Salima Abdalla; Defendant: Salim Abdalla
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kapsabet
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E031 of 2022
- Procedural Posture
- Environment and Land Case / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs in the cause
- Judges
- MN Mwanyale
- Legal Topics
- Burden of Proof, Fraud in Land Transactions, Court Jurisdiction, Admissibility of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salima Abdalla
Plaintiff
Salim Abdalla
Defendant
Procedural Posture
Environment and Land Case / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the Environment and Land Court has jurisdiction to order the DCI to investigate alleged fraud relating to land parcel Nandi/kamobo/2550.
- 2 Whether the court can assist a party in gathering or obtaining evidence in civil proceedings.
- 3 Whether the application for investigation by the DCI is merited in the context of adversarial proceedings.
Ratio Decidendi
The court held that in the adversarial system of justice, it is the responsibility of the parties to prove their allegations, and the burden of proof does not shift to the court. The applicant, alleging fraud, sought the court's assistance in obtaining evidence by compelling the DCI to investigate and report on the alleged fraudulent transactions. The court found that such a request would require the court to descend into the arena of conflict and assume a role not contemplated in civil proceedings. The court cited the Court of Appeal decision in Peter Kirika Githaiga & Another vs Betty Rashid (2016) eKLR, which emphasized that the trial court should not assist parties in fishing for or...
Court Disposition
application dismissed with costs in the cause
Orders
- The application dated May 4, 2023 is dismissed.
- Costs of the application to be in the cause.
Full Case Text
Judgment text and source record
27 paragraphs
Abdalla v Abdalla (Environment & Land Case E031 of 2022) [2023] KEELC 19198 (KLR) (27 July 2023) (Ruling)
Neutral citation: [2023] KEELC 19198 (KLR)
Republic of Kenya
In the Environment and Land Court at Kapsabet
Environment & Land Case E031 of 2022
MN Mwanyale, J
July 27, 2023
Between
Salima Abdalla
Plaintiff
and
Salim Abdalla
Defendant
Ruling
1. This Ruling is in respect of an application dated May 4, 2023 seeking the following reliefs; -a.Spentb.Spentc.That, the Honourable Court do order the Director of Criminal Investigations Land Fraud (Nairobi) to investigate within 45 days and return to Court a report touching on the following; -i.All transaction relating to land parcel Nandi/kamobo/2550 more particularly in Succ Cause High Court (Eldoret) 86 of 1999, Civil Case No. 1/2000 (Kadhi Court) and Misc Application (Eldoret) No. 180/1999).ii.Any other fraudulent transaction relating to land parcel Nandi/kamobo/2550. d.Costs of this application be provided for.
2. The application is supported by the grounds on the face thereof and the sworn Affidavit of the Applicant. He deponed that transactions of a criminal nature had been undertaken on the suit parcel. Further that the Respondent had made reference to non-existent documents in their list of documents filed in compliance with Order 11 of theCivil Procedure Rules. That there was a likelihood of reliance by the Court on fraudulent documents. In the premises, he was seeking for an order to the DCI to carry out investigations on the alleged fraud.
3. The Respondent filed grounds of opposition dated May 15, 2023 in which he termed the application as a waste of Court’s time since the orders sought were criminal in nature. Consequently, he urged this Court to dismiss the application with cots to the Respondent.
4. When the matter came up on May 16, 2023, the Court directed that the application be canvassed by way of written submissions. These directions were complied by both parties who filed their respective submissions which this Court had taken into consideration.
5. The Applicant submitted that this Court was empowered under Section 19 (3) (d) and (4) of the Environment and Land Court Acto grant the orders sought.
6. The Respondent on his part through his advocates submitted by pointing out that the orders sought by the Applicant were being addressed in the wrong Court. That the suit property emanated from succession proceedings hence these orders should have been sought there. In the premises Counsel urged this Court to down its tools since it had no jurisdiction over the application herein.
Analysis And Determination: - 7. The Court had considered the materials canvassed in respect of an against the motion. The main issue to be determined is whether the application is merited. In addressing the same this Court takes note of the reliefs sought in the application.
8. Essentially, the Applicant is seeking for an order to the effect that investigations be carried out as to the fraud committed in relation of the suit property. Thereafter a report be filed by the DCI on the same. In the Court’s view what the Applicant is seeking is the Court’s assistance in obtaining evidence.
9. The Court is alive to the fact that in our adversarial system of justice, in remains the role of parties to prove whatever they allege and this burden of proof never shifts to Court for assistance in proving a fact. It is always upon the parties to adduce sufficient evidence to prove the facts they assert.
10. The Court of Appeal in the case of Peter Kirika Githaiga & Another vs Betty Rashid (2016) eKLR had this to stay regarding the role of Court is such applications; -“The Appellants may as well call the Document Examiner as a witness. We think that by the Appellants asking the Court to compel the DCI to produce the report, they were asking the Court to descend into the arena of conflict which the Court should at all times avoid. Further, it does appear to us that by making the application, the Appellants were seeking the Court’s assistance in fishing for, gathering or retrieving evidence, hardly the role of the Trial Court in Civil proceedings.”
11. In view of the adversarial nature of our justice system, this Court is unable to grant prayer (3) of the application. The only party that can best perform this role is the one who alleges. It is noteworthy that the Applicant is alleging fraud on the part of the Respondent which is part of the Respondent which is criminal in nature. Counsel for the Applicant, I believe, is well aware of recourse in law in order to prove fraud. Unfortunately, this is not it.
12. In the premises, the application herein is dismissed with costs in the cause.
DELIVERED AND DATED AT KAPSABET THIS 27TH DAY OF JULY 2023. Hon. M. N. Mwanyale,JUDGEIn the presence of;Mr. Tallam for Defendant/RespondentMr. Ng’arng’ar holding brief for Mr. Nyamweya for Plaintiff/Applicant