[2018] KEELC 4052 (KLR)
The court held that the expert report prepared by the Land Surveyor, having been solicited by consent of the parties and adopted as a court order, could not be dismissed summarily. Since no party had filed a formal application to set aside or challenge the report through the proper legal process, the court admitted...
Source-derived case information.
- Citation
- [2018] KEELC 4052 (KLR)
- Parties
- Plaintiff: Cleophas Wafula; Defendant: Asmin Nasambu; Defendant: District Land Registrar Bungoma
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 107 of 2012
- Procedural Posture
- Land and Property Suit / Interlocutory Judgment on Admission of Expert Report and Directions for Hearing on Merits
- Outcome
- Expert report admitted as evidence; suit to proceed to hearing on merits.
- Judges
- SN Mukunya
- Legal Topics
- Boundary Disputes, Expert Evidence, Consent Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cleophas Wafula
Plaintiff
Asmin Nasambu
Defendant
District Land Registrar Bungoma
Defendant
Procedural Posture
Land and Property Suit / Interlocutory Judgment on Admission of Expert Report and Directions for Hearing on Merits
Legal Issues
- 1 Whether the expert report prepared by the Land Surveyor pursuant to the parties' consent should be admitted as evidence in the case.
- 2 Whether any party has properly challenged the expert report through the appropriate legal process.
Ratio Decidendi
The court held that the expert report prepared by the Land Surveyor, having been solicited by consent of the parties and adopted as a court order, could not be dismissed summarily. Since no party had filed a formal application to set aside or challenge the report through the proper legal process, the court admitted the report as evidence. The court further directed that the suit be fixed for hearing on its merits, where all issues could be tested through cross-examination. The court emphasized the importance of following due process when challenging expert evidence and noted that the report was intended to resolve the long-standing dispute but had not achieved consensus between the parties.
Court Disposition
Expert report admitted as evidence; suit to proceed to hearing on merits.
Orders
- The expert report filed by the Land Surveyor is admitted as evidence in this case.
- The suit shall be fixed for hearing on merits on a priority basis.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA.
IN THE ENVIRONMENT & LAND COURT OF KENYA AT BUNGOMA.
ELC. CASE NO. 107 OF 2012.
CLEOPHAS WAFULA…………………........………………………PLAINTIFF
VERSUS.
ASMIN NASAMBU…………………………………………...1ST DEFENDANT
DISTRICT LAND REGISTRAR BUNGOMA…………….2ND DEFENDANT
JUDGMENT.
[1]. On 9th March, 2017 the advocate for the parties entered a Court Order as follows;
By Consent, Land Surveyor Bungoma
(a) To visit parcels East Bukusu W. Sang’alo 890 and the Subdivisions therefrom and identify and fix the boundaries therein and
(b) Upon so doing the surveyor to make a report, which report should include a detailed history of the land parcels East Bukusu/West Sang’alo 890 and 891.
(c) The surveyor was to file their report in 60 days.
(d) Costs of the Surveyor to be shared equally by the parties and the same be paid to respective Counsels for transmission to the Surveyor within 21 days. The case was fixed for further orders on 9/5/2017.
The Consent was adopted as the order of the Court on 9/3/2017.
[2]. The report was filed on 9/5/2017. The parties asked for time to look at it and to file submissions. The parties actually filed their submissions and asked for a date of Judgment. This report is supported by Counsel for the plaintiff and opposed by Counsel for the respondent.
This is expert evidence. I am not convinced that the same can be dismissed off hand particularly when it was solicited for by consent of the parties. Any one challenging the same must challenge the same through the processes provided by law. It was hoped that this report would settle this seven year old case and parties would be satisfied. Unfortunately, it has not done so. There is no application to set it aside in court. I will admit it as evidence in this case.
[3]. This suit shall then be fixed for hearing on merits when all issues shall be liable to be tested on cross examination. The date shall be taken on priority basis since this case is over five years old.
It is so ordered.
Judgment read in open Court in the presence of the parties.
Dated at Bungomathis 22nd day of February, 2018.
S. MUKUNYA
JUDGE
In the presence of:
Joy: Court Assistant
Nafuye for the Plaintiff
Miss Isye for Madam Nanzushi for defendant