[2018] KEELC 4257 (KLR)
The court found that since the parties had previously indicated willingness to call the valuer who prepared the 1st respondent's report, it is appropriate to summon the valuer for clarification and cross-examination. The request to call a government surveyor was not part of the directions given under the consent...
Source-derived case information.
- Citation
- [2018] KEELC 4257 (KLR)
- Parties
- Plaintiff: M’Itimitu M’Mwithia; Defendant: Diocess of Meru Registered Trustee Romano Kobia
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 52 of 1998
- Procedural Posture
- Land and Property Dispute / Interlocutory Ruling on Evidentiary Objection
- Outcome
- Interlocutory orders issued; valuer to be summoned; other requests declined.
- Legal Topics
- Admissibility of Evidence, Valuation Reports, Cross Examination of Expert, Court Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M’Itimitu M’Mwithia
Plaintiff
Diocess of Meru Registered Trustee Romano Kobia
Defendant
Procedural Posture
Land and Property Dispute / Interlocutory Ruling on Evidentiary Objection
Legal Issues
- 1 Whether the 1st respondent's surveyor's report is admissible without cross-examination.
- 2 Whether the valuer who prepared the report should be summoned to court.
- 3 Whether a government surveyor should be called as a witness.
Ratio Decidendi
The court found that since the parties had previously indicated willingness to call the valuer who prepared the 1st respondent's report, it is appropriate to summon the valuer for clarification and cross-examination. The request to call a government surveyor was not part of the directions given under the consent order of 13.6.2017 and is therefore declined. The issue of releasing the sum of KES 180,638 to the appellant will be addressed at the conclusion of the matter, as the current proceedings arise from the earlier appeal and do not warrant an interim order for release of funds.
Court Disposition
Interlocutory orders issued; valuer to be summoned; other requests declined.
Orders
- The valuer who prepared the 1st respondent's report shall be called to shed light on the document.
- The request to call a government surveyor is declined.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC CASE NO. 52 OF 1998
M’ITIMITU M’MWITHIA......................PLAINTIFF
VERSUS
DIOCESS OF MERU REGISTERED
TRUSTEE ROMANO KOBIA............DEFENDANTS
RULING
1. The appellant’s counsel has raised an objection to the production of the 1st respondent’s surveyor’s report averring that the report is not conclusive.
2. Appellant’s desires to have the said surveyor summoned to court for cross examination or to call a government surveyor. 1st respondent’s counsel avers that the issues being raised now should have been raised when the appellant’s report was rejected by the court.
3. I find that the issue of valuation has been running for quite some time now. However on 19. 7.2017, Mutegi informed the court that “We can call the valuer perhaps”. Which means they are agreeable to calling the maker of the valuation report.
4. I therefore direct that the valuer who prepared the report of 1st respondent be called to shed light on the document.
5. As to calling a government surveyor, that was not an issue captured in the directions given under the consent on 13. 6.2017.
6. On the issue of the release of the sum of Shs.180,638 to appellant , I find that indeed the appeal was heard and determined. However, the current proceedings arise out of the aforementioned appeal. As such, the order on release of the money shall be made at the time of the conclusion of this matter.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 7th MARCH, 2018 IN THE PRESENCE OF:-
Court Assistant:Janet/Galgalo
Ondieki holding brief for Kiome for plaintiff present
Mutegi for Kiautha Arithi for 1st defendant
HON. LUCY. N. MBUGUA
ELC JUDGE