[2023] KEELC 16964 (KLR)
The court found that the applicants failed to provide any affidavit from Miriam Kigathi, the officer they claimed conducted the site visit, nor did they demonstrate any effort to involve her or raise their concerns with the Director of Survey. The court held that mere allegations without supporting evidence are...
Source-derived case information.
- Citation
- [2023] KEELC 16964 (KLR)
- Parties
- Plaintiff: Muranga Road Motor Mart Limited; Defendant: Jane Wairimu Kingori; Defendant: Tabitha Waruguru Maina; Defendant: Nancy Waturi Njonjo; Defendant: Director Of Survey Ministry of Lands; Defendant: Nairobi City County Government; Defendant: OCPD Buruburu Police Station
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E038 of 2022
- Procedural Posture
- Environment and Land Case / Ruling on Application to Expunge Survey Report
- Outcome
- application dismissed with costs to plaintiff and 4th defendant
- Judges
- LN Mbugua
- Legal Topics
- Survey Reports, Expungement of Evidence, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muranga Road Motor Mart Limited
Plaintiff
Jane Wairimu Kingori
Defendant
Tabitha Waruguru Maina
Defendant
Nancy Waturi Njonjo
Defendant
Director Of Survey Ministry of Lands
Defendant
Nairobi City County Government
Defendant
OCPD Buruburu Police Station
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application to Expunge Survey Report
Legal Issues
- 1 Whether the survey report filed by Wilfred Muchae should be expunged from the court record as requested by the 1st to 3rd defendants.
- 2 Whether the applicants demonstrated sufficient basis for the expungement of the report.
Ratio Decidendi
The court found that the applicants failed to provide any affidavit from Miriam Kigathi, the officer they claimed conducted the site visit, nor did they demonstrate any effort to involve her or raise their concerns with the Director of Survey. The court held that mere allegations without supporting evidence are insufficient to warrant the expungement of the survey report prepared by Wilfred Muchae. The applicants are at liberty to call Miriam Kigathi as a witness if they wish to challenge the report, but in the absence of credible evidence, the application to expunge the report could not succeed.
Court Disposition
application dismissed with costs to plaintiff and 4th defendant
Orders
- The application dated July 29, 2022 is dismissed with costs to the plaintiff and 4th defendant.
- The survey report filed by Wilfred Muchae remains on the court record.
Full Case Text
Judgment text and source record
36 paragraphs
Muranga Road Motor Mart Limited v Kingori & 5 others (Environment & Land Case E038 of 2022) [2023] KEELC 16964 (KLR) (20 April 2023) (Ruling)
Neutral citation: [2023] KEELC 16964 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case E038 of 2022
LN Mbugua, J
April 20, 2023
Between
Muranga Road Motor Mart Limited
Plaintiff
and
Jane Wairimu Kingori
1st Defendant
Tabitha Waruguru Maina
2nd Defendant
Nancy Waturi Njonjo
3rd Defendant
Director Of Survey Ministry of Lands
4th Defendant
Nairobi City County Government
5th Defendant
OCPD Buruburu Police Station
6th Defendant
Ruling
1. This suit was filed contemporaneously with an application dated February 7, 2022 where plaintiff sought various orders restraining the 1st – 3rd defendants from any dealings in the properties being subdivisions of LR 11379/3/ (Embakasi).
2. On March 3, 2022 the aforementioned application was compromised by consent in lieu of maintenance of status quo. The court also gave other orders again via consent of the advocates in the following terms:“The Director of Survey is to visit the site in company of the parties or their appointed representatives and to compile and file a report thereof.”Subsequently, a report dated June 24, 2022 was availed before this court.
3. The 1st – 3rd defendants have now brought forth an application dated July 29, 2022 seeking orders to have the said report expunged from the records.
4. The application is based on the Supporting Affidavit of the 1st defendant (Jane Wairimu). The applicants contend that the Government surveyor who conducted the site visit is one Miriam Kigathi who prepared a report and gave it to them (applicants). They contend that the said report of Miriam Kigathi differs from the one of Wilfred Muchae, claiming that the report filed by Muchae has been doctored and he was never at the scene.
5. The plaintiffs have opposed the application vide the Replying Affidavit of one Francis Nganga Mundia dated September 19, 2022, averring that the claim of the applicants are fictitious and should be dismissed.
6. The 4th defendant has opposed the application via the Replying Affidavit of one Wilfred Muchae dated February 17, 2023. He identifies himself as a principal Land Surveyor in the department of survey, and he terms the application as vexatious and frivolous.
7. He avers that pursuant to the court order of March 3, 2022, he was instructed by Director of Survey to proceed to the scene of where the ground visit was conducted on April 8, 2022 and thereafter, he prepared a survey report. He contends that the report allegedly filed by one Mirium Kigathi who purports to have visited the site is false.
8. I have considered the issues raised herein. This is a situation whereby all the parties are in agreement that the scene visit was conducted on April 8, 2022. However, the applicants contend that the officer from survey department who conducted site visit was one Mirium Kigathi while plaintiffs and 4th defendant contend that it is Wilfred Muchae who conducted the site visit and prepared the report.
9. I find that the officer identified as Mirium Kigathe has not filed any affidavit to buttress the averments of the applicants. What more, the applicants have not demonstrated that they made any efforts to reach out to the said officer to file an affidavit to that effect, nor did they express their sentiments and or complaints to the relevant office that is the Director of Survey.
10. I decline to expunge the survey report from the records. The applicants are at liberty to call the said Miriam Kigathi as their witness to avail her report.
11. The application dated July 29, 2022 is hereby dismissed with costs to plaintiff and 4th defendants.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 20TH DAY OF APRIL, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Joe Murage for PlaintiffM/s Odhiambo holding brief for Mr. Bake for 5th DefendantWere for the 1st - 3rd DefendantsAllan Kamau for Attorney GeneralCourt assistant: Joan