[2024] KEELC 422 (KLR)
The court found that, although the documents in question were not perfectly marked or stamped as annexures, there was no ambiguity as to their identity. The referenced grants were clearly identified in the affidavit and were available to the court. The court emphasized that procedural rules should not override...
Source-derived case information.
- Citation
- [2024] KEELC 422 (KLR)
- Parties
- Applicant: David Kipkemboi; Applicant: Josephine Moindi; Applicant: David Kamunya Runo; Applicant: Singuo Holdings Limited; Applicant: Timothy Ondieki; Respondent: Commissioner of Lands; Respondent: Registrar of Titles; Respondent: Director of Surveys; Respondent: Attorney General; Respondent: Microtech Accessories Limited; Respondent: Bangal Trading Limited; Respondent: Investment Co. Ltd; Respondent: Mokowe Traders Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Case Civil Suit 924 of 2012
- Procedural Posture
- Civil Suit / Ruling on Admissibility of Documentary Evidence
- Outcome
- Objections dismissed; documents admitted as exhibits.
- Judges
- LN Mbugua
- Legal Topics
- Admissibility of Evidence, Documentary Evidence, Land Grants, Affidavit Exhibits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Kipkemboi
Applicant
Josephine Moindi
Applicant
David Kamunya Runo
Applicant
Singuo Holdings Limited
Applicant
Timothy Ondieki
Applicant
Commissioner of Lands
Respondent
Registrar of Titles
Respondent
Director of Surveys
Respondent
Attorney General
Respondent
Microtech Accessories Limited
Respondent
Bangal Trading Limited
Respondent
Investment Co. Ltd
Respondent
Mokowe Traders Limited
Respondent
Procedural Posture
Civil Suit / Ruling on Admissibility of Documentary Evidence
Legal Issues
- 1 Whether the documents marked as exhibits 16 and 17 in the affidavit of 11.9.2018 are admissible as evidence despite objections regarding annexure stamps and document identification.
- 2 Whether procedural defects in marking or referencing exhibits in affidavits are fatal to their admissibility.
Ratio Decidendi
The court found that, although the documents in question were not perfectly marked or stamped as annexures, there was no ambiguity as to their identity. The referenced grants were clearly identified in the affidavit and were available to the court. The court emphasized that procedural rules should not override substantive justice unless the procedural infraction is fundamental to the dispute. Since the objections raised by the respondents did not go to the root of the matter and the documents were sufficiently identified, the court dismissed the objections and admitted the documents as exhibits 16 and 17.
Court Disposition
Objections dismissed; documents admitted as exhibits.
Orders
- The objections to the production of exhibits 16 and 17 are dismissed.
- The documents at page 321 ‘A’ and page 328 are admitted as exhibits 16 and 17.
Full Case Text
Judgment text and source record
43 paragraphs
Kipkemboi & 4 others v Commissioner of Lands & 7 others (Environment and Land Case Civil Suit 924 of 2012) [2024] KEELC 422 (KLR) (31 January 2024) (Ruling)
Neutral citation: [2024] KEELC 422 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment and Land Case Civil Suit 924 of 2012
LN Mbugua, J
January 31, 2024
Between
David Kipkemboi
1st Petitioner
Josephine Moindi
2nd Petitioner
David Kamunya Runo
3rd Petitioner
Singuo Holdings Limited
4th Petitioner
Timothy Ondieki
5th Petitioner
and
Commissioner of Lands
1st Respondent
Registrar of Titles
2nd Respondent
Director of Surveys
3rd Respondent
Attorney General
4th Respondent
Microtech Accessories Limited
5th Respondent
Bangal Trading Limited
6th Respondent
Investment Co. Ltd
7th Respondent
Mokowe Traders Limited
8th Respondent
Ruling
1. PW2 was in the process of producing 3 documents in his affidavit of 11. 9.2018 as exhibits 16,17 and 18 when various objects were raised. By the time of writing this ruling, the petitioner had abandoned the production of exhibit 18. The ruling hence relates to production of exhibit 16 and 17. It is averred that the documents being referred to are not the annexures that are at page 321 ‘A’ as the document at the aforementioned page is for David Kipkemboi. It is also averred that the documents don’t have annexure stamp.
2. Counsel for the petitioner contends that PW2 is producing his affidavits as his oral evidence hence the heading of the affidavits is a misnormer and that the affidavit can be treated as his statement while the annexures are his exhibits.
3. I have keenly perused paragraph 4 in the affidavit of 11. 9.2018 where PW2 states “I now produce a copy of the said registered grant marked ‘TO 1’. The grant in question is the one at page 321 “A” which is however not marked “T01”. Nevertheless, the Grant No. mentioned is one and the same; that is Grant No. 105312. There is therefore no ambiguity as to what document is being cross referenced at paragraph 4 of the said affidavit.
4. As for the document marked “TO2”, the same is so marked at page 325 as Grant No I.R. 105310.
5. In the case of Alexander Khamisi Mwimi v. Independent Electoral and Boundaries Commission & 2 others (2018) eKLR, the question of the Rules of Procedure vs Substantive Justice were discussed at length where it was stated that the infraction complained of must go to the root of the dispute that is before the court if the said rules of procedure are to prevail.
6. In the case at hand, it is clear in the body of the affidavit in question that the witness is producing the two grants. The same have been availed. In the circumstances, the objections raised by defendants are dismissed. The two grants at page 321 ‘A’ and page 328 are produced as exhibits 16 and 17.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JANUARY, 2024 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Munyua for PetitionerAllan Kamau for 1st - 4th RespondentsMr. Cohen Amanya and M/s Hadijah for 5th, 6th and 8th RespondentsMrs Ahomo holding brief for Mr. Issah for 7th RespondentCourt Assistant: Eddel