[2023] KEELC 941 (KLR)
The court found that proceeding with the hearing before all parties and the court have access to the survey report would be prejudicial, as the report was a product of a consented scene visit and is central to the resolution of the dispute. Since the plaintiff had not indicated an intention to call further witnesses...
Source-derived case information.
- Citation
- [2023] KEELC 941 (KLR)
- Parties
- Plaintiff: City Council of Nairobi; Defendant: Joel Kani Ole Sikamoi; Defendant: Board Management of Garden Estate Secondary School; Defendant: Board Management of Gargen 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 Closure of Plaintiff's Case and Directions on Further Hearing
- Outcome
- Plaintiff's case marked as closed; hearing adjourned pending survey report; cases against certain defendants withdrawn in related matter.
- Judges
- LN Mbugua
- Legal Topics
- Scene Visit Procedure, Survey Report Admissibility, Case Management, Adjournment of Hearing
- 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 Management of Garden Estate Secondary School
Defendant
Board Management of Gargen Estate Primary School
Defendant
Procedural Posture
Environment and Land Case / Ruling on Closure of Plaintiff's Case and Directions on Further Hearing
Legal Issues
- 1 Whether the case should proceed before the survey report is availed to all parties.
- 2 Whether the plaintiff's case should be marked as closed pending the survey report.
- 3 How to manage the hearing sequence in light of the pending report and closure of the plaintiff's case.
Ratio Decidendi
The court found that proceeding with the hearing before all parties and the court have access to the survey report would be prejudicial, as the report was a product of a consented scene visit and is central to the resolution of the dispute. Since the plaintiff had not indicated an intention to call further witnesses and the directions for the scene visit were by consent, the plaintiff's case was marked as closed. The hearing was adjourned to await the report, and the sequence for taking further evidence was set, with the 1st defendant to proceed next. Additionally, cases against the 1st and 3rd defendants in the related file ELC 1057 of 2016 were withdrawn as those entities were no longer...
Court Disposition
Plaintiff's case marked as closed; hearing adjourned pending survey report; cases against certain defendants withdrawn in related matter.
Orders
- The case of the plaintiff in ELC 392 of 2008 is marked as closed. Parties may move the court on issues relating to the survey report once received.
- Hearing is adjourned and shall proceed once the report is availed to the court and all parties.
Full Case Text
Judgment text and source record
22 paragraphs
City Council of Nairobi v Sikamoi & 2 others (Environment & Land Case 392 of 2008) [2023] KEELC 941 (KLR) (15 February 2023) (Ruling)
Neutral citation: [2023] KEELC 941 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 392 of 2008
LN Mbugua, J
February 15, 2023
Between
City Council of Nairobi
Plaintiff
and
Joel Kani Ole Sikamoi
1st Defendant
Board Management of Garden Estate Secondary School
2nd Defendant
Board Management of Gargen Estate Primary School
3rd Defendant
Ruling
1. I have perused the record particularly the proceedings of July 4, 2022. The directions given therein were that by consent, there was to be a scene visit conducted by a Government Surveyor, though the parties were at liberty to avail their respective private surveyors during the exercise; of which all counsels confirmed that the exercise was conducted. It is M/s Katila who had initiated the proposal to have a scene visit, but she did not indicate that they were to call any other witnesses.
2. The court has now been informed that a Preliminary Report is ready but it has to be formally approved and signed. Thus the same has not been availed to the court and the parties. In view of the fact that the directions of July 4, 2022 on scene visit were given by consent and the other parties, other than the 2nd & 3rd defendants in case ELC 392 of 2008 have not seen the report (Preliminary or otherwise), then I find that it would be prejudicial for the case to proceed at this stage.
3. I hence proceed to give the following orders:1. The case of the plaintiff in ELC 392 of 2008 is hereby marked as closed. Once parties get the Report, they will be at liberty to move the court accordingly on any issues relating to the said report.2. The hearing of the case is adjourned and shall proceed once the report is availed to the court and to all the parties.3. Considering that the plaintiffs in case No. 392 of 2028 have closed their case, and that the said file ELC 392 of 2008 is not only the older file, but it is the lead file too, then the evidence shall continue to be taken in the said file ELC 392 of 2008 with the 1st defendant being next on line followed by the other defendants. The evidence in ELC 1057 of 2016 shall then be taken but parties are at liberty to adopt any evidence taken in ELC 392 of 2008. 4.The cases against the 1st and 3rd defendants in ELC 1057 of 2016 are hereby marked as withdrawn as the said entities are no longer in offices.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 15TH DAY OF FEBRUARY, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-M/s Katila for PlaintiffNyang for 1st Defendant in 392 of 2008Kerubo for 2nd & 3rd Defendants in 392 of 2008 and for 2nd Defendant in 1057 of 2016Mrs. Kahindi for 1st Defendant in 1057 of 2016 (CDF)Mengich for 2nd Plaintiff in 1057 of 2016Court assistant: Eddel