[2024] KEELC 3598 (KLR)
The court found that the applicants had established a legitimate need for the production of the green card, mutation forms, and current search certificates relating to the suit property and its subdivisions. The respondents did not contest the alleged subdivision of the property, and the documents sought were in the...
Source-derived case information.
- Citation
- [2024] KEELC 3598 (KLR)
- Parties
- Plaintiff: Mathew Muange Munguti; Plaintiff: Benedict Kilonzo Muange; Plaintiff: Stephen Musau Muange (Suing as Administrators and Legal Representatives of the Late Muange Musau - Deceased); Defendant: Henry Kuria Kinuthia; Defendant: Land Registrar, Machakos; Defendant: Komarock Ranching & Farming Society Limited; Defendant: Komarock Housing Cooperative Society Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 184 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application for Production of Documents
- Outcome
- application allowed
- Judges
- A Nyukuri
- Legal Topics
- Discovery of Documents, Land Title Disputes, Fraudulent Transfer, Subdivision of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mathew Muange Munguti
Plaintiff
Benedict Kilonzo Muange
Plaintiff
Stephen Musau Muange (Suing as Administrators and Legal Representatives of the Late Muange Musau - Deceased)
Plaintiff
Henry Kuria Kinuthia
Defendant
Land Registrar, Machakos
Defendant
Komarock Ranching & Farming Society Limited
Defendant
Komarock Housing Cooperative Society Limited
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application for Production of Documents
Legal Issues
- 1 Whether the 2nd defendant should be compelled to furnish the applicant with the green card, mutation forms, and current search certificates for the suit property and its subdivisions.
- 2 Whether the production of these documents would amount to an ambush or violate the respondents' right to fair hearing under Article 50 of the Constitution.
Ratio Decidendi
The court found that the applicants had established a legitimate need for the production of the green card, mutation forms, and current search certificates relating to the suit property and its subdivisions. The respondents did not contest the alleged subdivision of the property, and the documents sought were in the custody of the 2nd defendant. The court held that making these documents available was necessary for the just determination of the dispute and would not prejudice the respondents, as they would have an opportunity to amend their defence and file further documents if necessary. The court rejected the argument that production of the documents would amount to an ambush or violate...
Court Disposition
application allowed
Orders
- The 2nd defendant is ordered to furnish the applicant with the green card for plot no. Donyo Sabuk/Komarock Block 1/547, mutation forms for its subdivision, and current search certificates for plot nos. Donyo Sabuk/Komarock Block 1/62415 and 1/62416.
- No order as to costs.
Full Case Text
Judgment text and source record
34 paragraphs
Munguti & 2 others v Kinuthia & 3 others (Environment & Land Case 184 of 2017) [2024] KEELC 3598 (KLR) (29 April 2024) (Ruling)
Neutral citation: [2024] KEELC 3598 (KLR)
Republic of Kenya
In the Environment and Land Court at Machakos
Environment & Land Case 184 of 2017
A Nyukuri, J
April 29, 2024
Between
Mathew Muange Munguti
1st Plaintiff
Benedict Kilonzo Muange
2nd Plaintiff
Stephen Musau Muange (Suing as Administrators and Legal Representatives of the Late Muange Musau - Deceased)
3rd Plaintiff
and
Henry Kuria Kinuthia
1st Defendant
Land Registrar, Machakos
2nd Defendant
Komarock Ranching & Farming Society Limited
3rd Defendant
Komarock Housing Cooperative Society Limited
4th Defendant
Ruling
1. Vide a notice of motion dated 23rd March, 2023, the plaintiff/applicant sought the following orders:-a.That this Honourable Court be pleased to order the 2nd defendant/respondent to furnish the applicant with the following documents: -i.A copy of the green card giving rise to plot no. Donyo Sabuk/Komarock Block 1/547. ii.Mutation forms for subdivision of plot no. Donyo Sabuk/Komarock Block 1/547. iii.Current search certificates for plot no. Donyo Sabuk/Komarock Block 1/62415 and Donyo Sabuk/Komarock Block 1/62416. as the applicant intends to use the documents in this case.b.Costs be provided for.
2. The application is anchored on the affidavit sworn by the 1st plaintiff on 23rd March, 2023. The applicant’s case is that the ownership of all that parcel known as Donyo Sabuk/Komarock Block 1/547 (hereinafter known as the ‘Suit Property’) was fraudulently changed and transferred from the deceased who died in 1991 to the 1st defendant.
3. He stated that the suit property was never sold to anybody and therefore it remains a mystery how the plot ended up in at the hands of the 1st defendant. He stated that they have further learnt that the suit property was further subdivided into plots numbers DONYO SABUK/KOMAROCK 1/62415 and DONYO SABUK/KOMAROCK 1/62416.
4. He further stated that attempts to obtain the official search were denied by the respondents and that they should be compelled to produce the documents since they are in their custody as the applicants intend to use the said documents in this case as evidence.
5. The application was opposed. Henry Kuria Kinuthia the 1st defendant filed a replying affidavit dated 2nd November 2023. He deposed that the applicant was obligated to obtain relevant documents at the point of filing this suit and that he has delayed for six years. He stated that the applicants sought to introduce new documents not initially served with pleadings which will amount to an ambush contrary to Article 50 of the Constitution. Further that the applicants have not shown any efforts in getting the sought documents.
Analysis and determination 6. I have considered the application, and the response and in my considered view, the only issue for determination is whether the application is merited. Section 3A of the Civil Procedure Act grants this court inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court.
7. In the instant matter, the suit property is alleged to have been subdivided into parcels Nos. DONYO SABUK/KOMAROCK 1/62415 and DONYO SABUK/KOMAROCK 1/62416. That allegation has not been contested by the respondents yet the 2nd defendant has neglected to avail official searches and green card to the applicant. The suit herein concerns the suit property and therefore if the same has been subdivided, it is only just that all the parties are aware of such subdivision to enable the court determine the real question in dispute over the correct land registration number so that court orders are not made in vain. Although the 1st defendant alleged that the documents sought to be introduced are new and it will amount to an ambush to grant the orders sought, it is my view that the defendant will have opportunity to amend his defence and also file further documents, if need be and therefore the question of ambush and violation of Article 50 of the Constitution does not arise.
8. In the premises, I find and hold that the application dated 24th March 2023 is merited and the same is hereby allowed as prayed with no order as to costs.
9. It is so ordered.
DATED, SIGNED AND DELIVERED AT MACHAKOS VIRTUALLY THIS 29THDAY OF APRIL, 2024 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORMA. NYUKURIJUDGEIn the presence of:Mr. Mutuku for plaintiffsMs. Mutuku holding brief for Mr. Munyao for 3rd and 4th defendantsMr. Muema for 1st defendantCourt assistant – Abdisalam