[2018] KEELC 2329 (KLR)
The court held that a site visit would assist in understanding the dispute regarding access roads and land identification, and that the absence of a surveyor or survey map does not preclude the court from making its own lay observations. The court further found that the issue of substitution of deceased defendants...
Source-derived case information.
- Citation
- [2018] KEELC 2329 (KLR)
- Parties
- Plaintiff: Ibrahim Musa Mohamed; Defendant: Amina Hassan Suleiman
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 210 of 2017
- Procedural Posture
- Notice of Motion Application / Interlocutory Ruling on Application for Site Visit
- Outcome
- application allowed
- Judges
- CK Yano
- Legal Topics
- Site Visit, Access Roads, Identification of Land, Judicial Discretion, Deceased Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ibrahim Musa Mohamed
Plaintiff
Amina Hassan Suleiman
Defendant
Procedural Posture
Notice of Motion Application / Interlocutory Ruling on Application for Site Visit
Legal Issues
- 1 Whether the court should grant an order for a site visit of the suit premises.
- 2 Whether the application is incompetent due to the death of some defendants and lack of substitution.
- 3 Whether the absence of a surveyor or survey map precludes the granting of a site visit order.
Ratio Decidendi
The court held that a site visit would assist in understanding the dispute regarding access roads and land identification, and that the absence of a surveyor or survey map does not preclude the court from making its own lay observations. The court further found that the issue of substitution of deceased defendants is a matter for the plaintiff to address and does not bar the granting of the application for a site visit. The application was therefore allowed to facilitate expeditious resolution of the matter.
Court Disposition
application allowed
Orders
- The application for a site visit is allowed with costs in the cause.
- The parties are directed to arrange the site visit within the shortest time possible on a date suitable to all parties and the court.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
ELC 210 OF 2017
IBRAHIM MUSA MOHAMED.......................................................PLAINTIFF
-VS-
AMINA HASSAN SULEIMAN AND 6 OTHERS....................DEFENDANTS
RULING
1. The Notice of Motion Application before Court is dated 8th December 2017. The Application seeks primary orders of site visit of the Suit Premises by this Court. The Application is supported by the Affidavit of Ibrahim Musa Mohamed sworn on 8th December 2017 and is premised upon the grounds set out therein, among them that the visit will give the Court opportunity to appreciate the issue in controversy and may fast track the matter or be persuaded to grant interim orders which may ameliorate the situation on the ground.
2. The Application is opposed by the 2nd, 3rd and 4th Defendants who filed grounds of opposition dated 5th April 2018. It is their contention that the Application and the entire suit cannot proceed until the Plaintiff substitutes the 1st, 5th and 6th Defendants who are deceased and that the Plaintiff has neither laid any basis and/or exhibited any evidence in support of the site visit and the manner which it shall be conducted. They further contend that there is no surveyor appointed or a current survey map exhibited to guide the process. It is a also their contention that the issue in controversy is about access roads to several plots in Kwale and identification of a road through the said plots is mandate which lies with a government surveyor, and the application lacks merit, is frivolous, vexatious and abuse of the court process. They therefore urged the court to have the application dismissed with costs to the defendant.
3. I have carefully considered the Application and submissions. While I agree that there is need of an expert such as a surveyor to visit such site and file a report, I still believe that since the court is not an expert in the matter, the court’s lay observation of the site would help the Court to better understand the dispute. Secondly, the Applicant is the owner of the case at hand, and to the extent judicially possible, the Court would grant his wish for the Court to visit the site. I do not think that the site visit is abuse of the Court Process. Neither is it a waste or imprudent use of judicial time. To grant this Application would to the contrary allow the parties to move faster in the suit. As regards the parties who are deceased, this court is of the view that it is up to Plaintiff to decide how he wants to do with the case against them.
4. Accordingly, I allow the Application with costs in the cause.
5. I direct that the said site visit be arranged by the parties and should be effected within the shortest time possible on a date suitable to all the parties and the Court as time is of essence.
It is so ordered.
Ruling dated, signed and delivered at Mombasa this 25th day of July 2018.
___________________________
C. YANO
JUDGE