[2018] KEELC 3333 (KLR)
The court determined that a scene visit was warranted to clarify the factual issues regarding occupation and use of the disputed land. The petitioners failed to demonstrate any substantive prejudice that would result from the visit, only citing inconvenience. Given the protracted nature of the proceedings and the...
Source-derived case information.
- Citation
- [2018] KEELC 3333 (KLR)
- Parties
- Applicant: Isaiah Mbaabu (suing on behalf of Athimba Clan); Applicant: Pasquale Muketha (suing through Akachiu Clan); Applicant: Ibrahim Karani (suing through Nkula Clan); Respondent: Land Adj & Settlement Officer; Respondent: Attorney General; Respondent: Mate Kaberia Baibiri; Respondent: Kobia Baimuri; Respondent: Paul Solomon Miriti
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 2 of 2014
- Procedural Posture
- Constitutional Petition / Interlocutory Application Ruling on Scene Visit
- Outcome
- Application for scene visit allowed.
- Legal Topics
- Scene Visit, Land Occupation, Disputed Land, Court Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaiah Mbaabu (suing on behalf of Athimba Clan)
Applicant
Pasquale Muketha (suing through Akachiu Clan)
Applicant
Ibrahim Karani (suing through Nkula Clan)
Applicant
Land Adj & Settlement Officer
Respondent
Attorney General
Respondent
Mate Kaberia Baibiri
Respondent
Kobia Baimuri
Respondent
Paul Solomon Miriti
Respondent
Procedural Posture
Constitutional Petition / Interlocutory Application Ruling on Scene Visit
Legal Issues
- 1 Whether a scene visit should be conducted by the court to ascertain the status of the disputed land.
- 2 Whether the petitioners would be prejudiced by the conduct of a scene visit.
Ratio Decidendi
The court determined that a scene visit was warranted to clarify the factual issues regarding occupation and use of the disputed land. The petitioners failed to demonstrate any substantive prejudice that would result from the visit, only citing inconvenience. Given the protracted nature of the proceedings and the need for a clear factual record, the court exercised its discretion to allow the application. The Deputy Registrar was directed to conduct the visit, make specific observations, and file a report, with costs to be borne by the 3rd to 5th respondents.
Court Disposition
Application for scene visit allowed.
Orders
- A scene visit to the disputed land shall be conducted by the Deputy Registrar in the presence of the parties and/or their advocates.
- The Deputy Registrar shall observe and report on: (i) who is in occupation of the land; (ii) how many families are on the disputed land; (iii) what activities and/or developments are on the suit land.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
PETITION NO. 2 OF 2014
ISAIAH MBAABU (SUING ON BEHALF OF ATHIMBA CLAN)..........1ST PETITIONER
PASQUALE MUKETHA (SUING THROUGH AKACHIU CLAN)........2ND PETITIONER
IBRAHIM KARANI (SUING THROUGH NKULA CLAN).....................3RD PETITIONER
VERSUS
LAND ADJ & SETTLEMENT OFFICER.................................................1ST RESPONDENT
ATTORNEY GENERAL.............................................................................2ND RESPONDENT
MATE KABERIA BAIBIRI........................................................................3RD RESPONDENT
KOBIA BAIMURI........................................................................................4TH RESPONDENT
PAUL SOLOMON MIRITI.........................................................................5TH RESPONDENT
RULING
1. A request has been made by counsel for 3rd, 4th and 5th defendants to have a scene visit in respect of the suit land. These respondents aver that the petitioners are alienating the suit land by disposing off the same to 3rd parties.
2. The Attorney General has no objection to the scene visit. However petitioners are opposed to the scene visit apparently because it would not be practical.
3. I find that this suit has been in court since January 2014 and the actual trial has never taken off.
4. The 3rd – 5th respondents aver that the scene visit will enable the court to get a clear picture of the dispute. Save for the part of being inconvenienced by the scene visit petitioners have not indicated as to how they will be prejudiced by the visit.
5. I hence allow the application for the scene visit in the following terms:
a. There is to be a scene visit conducted by the Deputy registrar of the court in the presence of the parties and/or their advocates.
b. The Deputy Registrar to make the following observations;
i. Who is in occupation of the land?
ii. How many families are on the disputed land?
iii. What activities and or developments are on the suit land?
c. Thereafter, the Deputy Registrar is to file the report in this court.
d. The 3rd – 5th respondents to meet the costs of the scene visit.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 16th MAY, 2018 IN THE PRESENCE OF:-
Court Assistant:Janet/Galgalo
Ogoti for petitioners
Kithinji holding brief for Kirima present
Attorney General for 1st and 2nd respondents absent
Mwiti for 3rd, 4th and 5th respondents present
HON. LUCY. N. MBUGUA
ELC JUDGE