[2023] KEELC 16959 (KLR)
The court held that only parties to the proceedings have the locus standi to seek orders such as the expungement of part of a survey report. Since the applicant, represented by counsel E Gaturu, was not a party to the suit, he could not properly move the court for such relief. The court further noted that if the...
Source-derived case information.
- Citation
- [2023] KEELC 16959 (KLR)
- Parties
- Plaintiff: City Council of Nairobi; Defendant: Joel Kani Ole Sikamoi; Defendant: Board of Management of Garden Estate Secondary School; Defendant: Board of Management of Garden Estate Primary School
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 392 of 2008
- Procedural Posture
- Environment and Land Case / Ruling on Application to Expunge Part of Survey Report
- Outcome
- application declined
- Judges
- LN Mbugua
- Legal Topics
- Locus Standandi, Survey Reports, Joinder of Parties, Expungement of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
City Council of Nairobi
Plaintiff
Joel Kani Ole Sikamoi
Defendant
Board of Management of Garden Estate Secondary School
Defendant
Board of Management of Garden Estate Primary School
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application to Expunge Part of Survey Report
Legal Issues
- 1 Whether a non-party has locus standi to seek expungement of part of a survey report filed in the proceedings.
- 2 Whether the court can expunge part of the survey report at the instance of a non-party.
- 3 Whether the disputed land parcel is properly before the court in these proceedings.
Ratio Decidendi
The court held that only parties to the proceedings have the locus standi to seek orders such as the expungement of part of a survey report. Since the applicant, represented by counsel E Gaturu, was not a party to the suit, he could not properly move the court for such relief. The court further noted that if the applicant wished to participate in the proceedings, he must first apply for joinder. The court declined to expunge any part of the survey report at this stage, and also declined to determine whether parcel 20605 is the same as LR 20528, as this was not properly before the court.
Court Disposition
application declined
Orders
- The application by Mr E Gaturu to expunge a part of the survey report is declined.
Full Case Text
Judgment text and source record
26 paragraphs
City Council of Nairobi v Sikamoi & 2 others (Environment & Land Case 392 of 2008) [2023] KEELC 16959 (KLR) (20 April 2023) (Ruling)
Neutral citation: [2023] KEELC 16959 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 392 of 2008
LN Mbugua, J
April 20, 2023
Between
City Council of Nairobi
Plaintiff
and
Joel Kani Ole Sikamoi
1st Defendant
Board of Management of Garden Estate Secondary School
2nd Defendant
Board of Management of Garden Estate Primary School
3rd Defendant
Ruling
1. On 27. 2.2023, this matter was scheduled for hearing in open court when advocate E Gaturu appeared and addressed the court, stating that he represents a client by the name James Kimani Horeria who is not a party to this suit. That a survey report has been tendered before this court and it covers his clients land LR No 20528 registered in the name of Margaret Nyakinyua Murigo, which land is a subject of an appeal at the Court of Appeal Case No 41/2004 Nairobi, where a decree was issued on 21. 2.2013. He avers that his client’s land was never part of the school, yet it has been included in the report.
2. Counsel Kerubo for the 2nd and 3rd defendants stated that she had seen the mentioned court order which refers to LR 20528 Garden Estate which is not captured in the survey report.
3. Counsel Mengitch for plaintiff in ELC 1057 /2016 stated that the person mentioned by counsel E Gaturu was present during the site visit and that if he desired to participate in the proceedings, he should seek to be joined in the case.
4. Counsel Nyang for defendant in ELC 392 of 2008 aligned herself with the sentiments of counsel Kerubo, adding that the subject matter is isolated, and that they ought to move the court in the right way.
5. In rejoinder, counsel E Gaturu stated that his client’s land is No 20528 but due to fraudulent dealings, the land now reads No 20605.
6. I have considered the issue raised herein. I note that the survey report in question came about due to consent orders given on 3. 10. 2022 where parties agreed that there be a scene visit of which a report was duly availed.
7. The person who apparently has an issue with the report is not a party in these proceedings and hence he has no locus to apply that a part of the report be expunged. If the said person desires to participate in any part of these proceedings, then he has to make the necessary application to that effect; Otherwise it is not the place of this court to expunge any part of the report at this stage, nor can the court determine that parcel 20605 mentioned in the report is the same parcel as LR 20528 allegedly belonging to Mr Gaturu’s client. The application by Mr E Gaturu to expunge a part of the survey report is hereby declined.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 20TH DAY OF APRIL, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Nyang for the Defendants and holding brief for the 2nd Defendant in 1057 of 2016Gaturu for the ApplicantCourt assistant: Joan