[2019] KEELC 3741 (KLR)
The court found that since its earlier order requiring the County Land Registrar and Director of Survey to attend and produce documents had not been set aside or stayed, it remained valid and should be complied with. The court further held that it is only fair and just to allow the plaintiff to re-open his case...
Source-derived case information.
- Citation
- [2019] KEELC 3741 (KLR)
- Parties
- Plaintiff: Mohammed Jama Abdi; Defendant: Jimmy Nyagaka; Defendant: Rhoda Onyancha; Defendant: James Gachoki; Defendant: Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 153A of 2012
- Procedural Posture
- Land and Property Case / Ruling on Application to Re Open Plaintiff's Case
- Outcome
- Plaintiff's application to re-open his case is allowed for the limited purpose of calling the County Land Registrar and Director of Survey.
- Judges
- A Ombwayo
- Legal Topics
- Reopening of Case, Adducing Additional Evidence, Land Dispute Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohammed Jama Abdi
Plaintiff
Jimmy Nyagaka
Defendant
Rhoda Onyancha
Defendant
James Gachoki
Defendant
Attorney General
Defendant
Procedural Posture
Land and Property Case / Ruling on Application to Re Open Plaintiff's Case
Legal Issues
- 1 Whether the plaintiff should be allowed to re-open his case to call additional witnesses from the Ministry of Lands.
- 2 Whether the court's previous order requiring attendance of the County Land Registrar and Director of Survey should be complied with in the absence of a stay or set aside.
Ratio Decidendi
The court found that since its earlier order requiring the County Land Registrar and Director of Survey to attend and produce documents had not been set aside or stayed, it remained valid and should be complied with. The court further held that it is only fair and just to allow the plaintiff to re-open his case solely for the purpose of calling these crucial witnesses, as their evidence is necessary for the full and fair determination of the issues in controversy. The court rejected the defendants' objections, noting that compliance with its order is mandatory in the absence of a stay or setting aside, and that the interests of justice outweigh the procedural objections raised.
Court Disposition
Plaintiff's application to re-open his case is allowed for the limited purpose of calling the County Land Registrar and Director of Survey.
Orders
- The plaintiff is allowed to re-open his case to call the County Land Registrar and Director of Survey as witnesses.
- The County Land Registrar to produce the parcel file of Eldoret Municipality/Block 7/258.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT ELDORET
E & L CASE NO. 153A OF 2012
MOHAMMED JAMA ABDI................................................PLAINTIFF
VERSUS
JIMMY NYAGAKA...................................................1ST DEFENDANT
RHODA ONYANCHA...............................................2ND DEFENDANT
JAMES GACHOKI...................................................3RD DEFENDANT
ATTORNEY GENERAL............................................4TH DEFENDANT
RULING
Mr. Otieno for the plaintiff applies that the plaintiff’s case be re-opened to enable him call witnesses from the Ministry of Lands; that is, the Director of Survey and the County Land Registrar Uasin Gishu.
The application is opposed by Mr. Mukhabane learned counsel for the 1st 2nd and 3rd defendant on the grounds that the plaintiff’s case was closed on 17. 9.2018. The defence case was closed on 17. 9.2018. The 4th defendant’s case was closed on 20. 9.2018. All documents intended to be produced are dated 2016 onwards. The case was filed in 2004. There is no ground review for re-opening the plaintiff’s case. He argues that the court should not aid the plaintiff and that the 4th defendant should not aid the plaintiff.
Mr. Odongo, State Counsel argues that the witnesses to be called are not in the list of witnesses. The court should not be seen to be aiding the parties by re-opening the case. The defendants will be prejudiced.
To begin with, on 21. 9.2018, this court made an order:
1. That the County Lands Registrar and Director of Survey to attend court and give evidence.
2. That the County Lands Registrar to produce the parcel file of Eldoret Municipality/Block 7/258.
3. The Director of Survey to produce:
(i) Certified map of Eldoret Block 7 FR. 238/98; 232/35; 278/124; 230/174; 28/81; 198/150; 318/170.
(ii) A complete file No. CT/74/71/231 of 07/06/1995; CT/74/71/230 of 07/06/1995.
4. That the matter to be heard on 22. 02. 2019.
5. That documents to be filed within the next 30 days.
This order has not been set aside. There is no application for stay of proceedings pending appeal though a notice of appeal has been filed. It is only prudent that the order of the court be complied with unless there is an order staying proceedings pending appeal or unless the order is set aside.
The party who is desirous to call the Director of Survey and the County Land Registrar is the plaintiff. The defendants are not supporting the order that the two witnesses be called. It is only fair that the plaintiff’s case be re-opened only for purposes of calling the Director of Survey and the County Land Registrar. The plaintiff is hereby allowed to re-open his case and call the County Land Registrar and Director of Survey who are very crucial witnesses in this matter, to enable the court hear and determine all issues in controversy. Costs in the cause. Orders accordingly.
Dated and delivered at Eldoret this 9th day of April, 2019.
A. OMBWAYO
JUDGE