[2017] KEELC 632 (KLR)
The court held that the County Surveyor's report, prepared by Mr. Wachira on behalf of the Isiolo County Surveyor's office pursuant to a court order, is admissible as evidence. The court further found that the report filed by Kabiru & Co. Advocates was not authorized by any court order and must therefore be expunged...
Source-derived case information.
- Citation
- [2017] KEELC 632 (KLR)
- Parties
- Plaintiff: Fatuma Mohammed Ali; Defendant: Boru Dika; Defendant: Henry Kimathi; Defendant: Festus Nyaga Kamberia
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 25 of 2013
- Procedural Posture
- Civil Suit / Interlocutory Ruling on Admissibility and Directions Regarding Surveyor Reports and Scene Visit
- Outcome
- Interlocutory orders issued regarding admissibility and handling of surveyor reports; unauthorized report expunged; cross-examination of County Surveyor ordered; no further scene visit to be conducted.
- Legal Topics
- Admissibility of Evidence, Land Boundary Disputes, Court Ordered Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fatuma Mohammed Ali
Plaintiff
Boru Dika
Defendant
Henry Kimathi
Defendant
Festus Nyaga Kamberia
Defendant
Procedural Posture
Civil Suit / Interlocutory Ruling on Admissibility and Directions Regarding Surveyor Reports and Scene Visit
Legal Issues
- 1 Whether the County Surveyor's report is admissible as evidence in court.
- 2 Whether the report filed by Kabiru & Co. Advocates should be part of the court record.
- 3 Whether a further scene visit is necessary after the County Surveyor's report.
Ratio Decidendi
The court held that the County Surveyor's report, prepared by Mr. Wachira on behalf of the Isiolo County Surveyor's office pursuant to a court order, is admissible as evidence. The court further found that the report filed by Kabiru & Co. Advocates was not authorized by any court order and must therefore be expunged from the record. The court determined that no further scene visit was necessary because the County Surveyor's report sufficiently addressed the issues for which the visit was ordered. The court also directed that Mr. Wachira be made available for cross-examination on his report, as requested by the defence. These directions were made to ensure that only properly authorized and...
Court Disposition
Interlocutory orders issued regarding admissibility and handling of surveyor reports; unauthorized report expunged; cross-examination of County Surveyor ordered; no further scene visit to be conducted.
Orders
- The report filed on 21/10/2017 by Kabiru & Co. Advocates is expunged from the records.
- Mr. Wachira, author of the County Surveyor's report filed on 27/6/2017, is to be cross-examined on this report.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
CIVIL SUIT NO. 25 OF 2013
FATUMA MOHAMMED ALI.........................................PLAINTIFF
VS
BORU DIKA........................................................1ST DEFENDANT
HENRY KIMATHI...............................................2ND DEFENDANT
FESTUS NYAGA KAMBERIA.........................3RD DEFENDANT
RULING
Pursuant to a scene visit undertaken via a court order, this court now proceeds to give regarding reports from the scene visit.
On 24/4/2017, the court gave directions for the Isiolo County Surveyor to file a Surveyor’s Report in respect of the suit land. Further directions were given on 24/7/2017 for there to be a scene visit whereby the Isiolo County Surveyor was to point out the beacons in respect of the disputed parcels of land.
On 24/10/2017, plaintiff’s counsel informed the court that the scene visit was not properly done as Mr Wachira County Surveyor was objected by defence counsel from pointing out the beacons.
On the other hand defence counsel had stated that the County Surveyor was not available and hence it is as if there was no scene visit.
I find that the County Surveyor Report is prepared by one Peter K. Wachira “for the County Surveyor”. The person who prepared the report did so on behalf of that office. I therefore, find that the Report is admissible in court pursuant to the court order of 24/4/2017.
The other Report that was to be prepared is the one by the Deputy Executive Officer of this court pursuant to direction No. 5 in the order of 24/7/2017. The report is in the court file. It is also admitted as part of the record.
The directions with regard to these reports were made in furtherance of the requests made by the parties (their advocates). In particular, I note that it is the defence counsel who had applied to have a scene visit and to cross examine the County Surveyor on his report. No request was made to have a private surveyor and hence no order was made to have a report from such private surveyor.
I therefore proceed to give directions as follows:
1) The report filed on 21/10/2017 by Kabiru & Co. Advocates is filed without the authority or order of this court. The said Report is hereby expunged from the records.
2) Mr. Wachira, the author of the report filed on 27/6/2017 (for County Surveyor) is to be cross examined on this report.
3) There will be no further scene visit as the County Surveyor’s report captures the purpose of the scene visit.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 6TH DAY OF DECEMBER, 2017 IN THE PRESENCE OF:-
CA: Janet
Ondieki for Plaintiff Present
Mutegi for Defendant (1st & 3rd)
Gitonga H/B for Rimita for 2nd Defendant Present
L. N. MBUGUA
ELC JUDGE