[2023] KEHC 17986 (KLR)
The court held that the evidence already on record, including witness testimonies and documentary evidence, was sufficient for determination of the issues in dispute. A site visit, even with a neutral geologist, would not materially assist the court, as the court would not be able to discern the rock formations...
Source-derived case information.
- Citation
- [2023] KEHC 17986 (KLR)
- Parties
- Plaintiff: JTG Enterprises Limited; Defendant: China Gezhouba Group Company Limited; Defendant: Principal Secretary Ministry of Water, Sanitation and Irrigation; Defendant: Smec International Pty; Defendant: Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case E649 of 2021
- Procedural Posture
- Civil Case / Ruling on Application for Site Visit After Close of Defence Case
- Outcome
- application for site visit declined; directions for filing submissions issued
- Judges
- A Mabeya
- Legal Topics
- Site Visit Application, Admissibility of Evidence, Judicial Fact Finding
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
JTG Enterprises Limited
Plaintiff
China Gezhouba Group Company Limited
Defendant
Principal Secretary Ministry of Water, Sanitation and Irrigation
Defendant
Smec International Pty
Defendant
Attorney General
Defendant
Procedural Posture
Civil Case / Ruling on Application for Site Visit After Close of Defence Case
Legal Issues
- 1 Whether the court should grant an application for a site visit with a neutral geologist after close of defence case.
- 2 Whether a site visit would amount to improper judicial investigation of evidence.
Ratio Decidendi
The court held that the evidence already on record, including witness testimonies and documentary evidence, was sufficient for determination of the issues in dispute. A site visit, even with a neutral geologist, would not materially assist the court, as the court would not be able to discern the rock formations itself and such a visit would risk the court engaging in its own fact-finding, which is improper. The court emphasized that it is not its role to investigate evidence beyond what has been presented by the parties. Accordingly, the application for a site visit was declined, and the matter was directed to proceed to submissions based on the existing record.
Court Disposition
application for site visit declined; directions for filing submissions issued
Orders
- The application for a site visit is declined.
- The plaintiff to file and serve submissions within 14 days.
Full Case Text
Judgment text and source record
28 paragraphs
JTG Enterprises Limited v China Gezhouba Group Company Limited & 3 others (Civil Case E649 of 2021) [2023] KEHC 17986 (KLR) (Commercial and Tax) (31 May 2023) (Ruling)
Neutral citation: [2023] KEHC 17986 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
Commercial and Tax
Civil Case E649 of 2021
A Mabeya, J
May 31, 2023
Between
JTG Enterprises Limited
Plaintiff
and
China Gezhouba Group Company Limited
1st Defendant
Principal Secretary Ministry of Water, Sanitation and Irrigation
2nd Defendant
Smec International Pty
3rd Defendant
Attorney General
4th Defendant
Ruling
1. The defence closed its case on May 25, 2023. At that juncture, Hon Maanzo Learned Counsel for the defence applied that the court does visit the locus in quo with a neutral Geologist to witness for itself the rock formation. Ms. Murugi for the AG supported the application.
2. Mr. Kihiko, Learned Counsel for the plaintiff opposed the application. He indicated that there is already on record a geological report.
3. I have considered the application. Already on record is the testimonies of the witnesses on the documents filed. The parties had the opportunity to produce all the evidence they know or thought was in support of their cases. If the court visits the locus in quo, will that not amount to investigating the evidence?
4. My view is that, even if the court visited the site, it will not be able to discern the rock formations. That will be in futility. And, if the visit is with the help of the so called proposed neutral geologist, the court would be out for fact finding which I think may not be proper.
5. In this regard, I believe the evidence on record is sufficient for the purposes of the case before me.
6. Accordingly, the application for site visit is declined. Let the parties proceed to give their submissions. The plaintiff to file and serve own submissions within 14 days. The defendant to file and serve own submissions within 14 days of service. Judgment to be on 28/7/2023. It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF MAY, 2023. A. MABEYA, FCIArbJUDGE