https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3240

Muthaiga Heights Management PLC v View Point Homes Limited & 3 others (Environment and Land Petition E029 of 2024) [2026] KEELC 3240 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEELC 3240 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Petition E029 of 2024 TW Murigi, J May 22, 2026 Between Muthaiga Heights Management PLC Petitioner and View Point Homes Limited 1st Respondent County Government of Nairobi 2nd Respondent National Environment Management Authority 3rd Respondent and Kenya Urban Roads Authority Interested Party Ruling 1.By a Notice of Motion dated 21st April 2026, brought under Sections 1A, 1B, 3A of the Civil Procedure Act, Order 51 Rule 1, Articles 159 (2), and 50 of the Constitution of Kenya, the Petitioner/Applicant seeks the following orders:a.Spent.b.That this Honourable Court be pleased to order that the site visit report dated 31st March, 2026, conducted pursuant to the court's order of 4th March, 2026, be struck out for being irregular, irrational and legally flawed.c.That this Honourable Court be pleased to order that a new site visit be conducted by an independent officer in the presence of the parties and their advocates to establish the true status of the subject property.d.Spent.e.That this Honourable Court be pleased to issue orders allowing the Applicant Advocate to cross-examine Mr Erick Okuku (Assistant Director, Planning Compliance and Development Inspection) on the content of the Report.f.That the costs of this application be provided for. 2.The application is based on the grounds appearing on its face together with the supporting of Cain Mingo, the Petitioner’s Advocate, sworn on even date. The Applicant’s Case** 3.The deponent averred that on 4th March 2026, Hon. Lady Justice A. Omollo ordered a site visit to be conducted and a report on the inspection to be filed in Court. He confirmed that the site visit was duly carried out and that a report was subsequently prepared by Mr Erick Okuku, the Assistant Director, Planning, Compliance and Development Inspection. 4.He asserted that the site visit report was biased, irrational and legally flawed, and that its findings and recommendations did not reflect the factual situation on the ground. In particular, he stated that during the site visit, Mr Okuku solely relied on a building plan and lacked maps or independent reference points. 5.He further stated that Mr Okuku lacked the necessary technical instruments to identify beacons, carry out measurements to verify that the building was aligned with the plan, determine the riparian reserve distance, or confirm the sewer connection. He argued that the report was based solely on the building plans submitted by the Respondent and on Mr Okuku's own estimates. 6.The deponent averred that County Government Officials in the Department of Planning Compliance and Development Inspection, when authorized by a Court to undertake specific tasks, are required to act in accordance with procedures ensuring fairness, technical accuracy and adherence to development regulations. He argued that the failure to use technical instruments during the site visit rendered the report irrational and legally flawed. He stated that photographic and video evidence confirming the absence of such instruments during the site visit was available via a Google Drive link. 7.He asserted that the report was based on assumptions, speculation, and conjecture rather than evidence. To support this point, he relied on Routestone Ltd v Minories Finance Ltd and Another; Same v Bird and Others [1997] BCC 180, where the Court held that an expert should not only present conclusions but also demonstrate the analytical process used to reach those conclusions. 8.Regarding specific flaws in the report, the deponent averred that the 2nd Respondent deliberately failed to identify the beacons to avoid disclosing that the 1st Respondent's building covers 100% of the area from beacon to beacon, which contravenes the conditions of the title deed and the Nairobi County Zoning Guidelines. He further averred that the 2nd Respondent deliberately failed to measure the riparian reserve setback and the sewer connection and instead recorded fictitious measurements that cannot support an accurate report. 9.In conclusion, the Petitioner urged the Court to allow the application as prayed. The 1St Respondent’s Case 10.The 1st Respondent filed a replying affidavit of its General Manager, Zamzam Hussein, in opposition to the application. The deponent averred that the Court was scheduled to deliver judgment on 22nd May 2026. She added that the application, filed on 21st April 2026, barely one month before that date, was a deliberate attempt to prevent the delivery of the judgment and to cause further delay in proceedings that had already been unreasonably delayed. 11.She further averred that the application was part of a consistent and demonstrable pattern of delay by the Petitioner at every critical stage of the proceedings. She stated that the Petition was scheduled for a substantive hearing on 29th and 30th July 2025, and that shortly before these dates, the Petitioner filed a contempt application which led to both hearing dates being vacated. She explained that, following the contempt ruling, the Petitioner changed advocates, further delaying the matter. She stated that the matter was eventually heard, submissions were filed, and judgment reserved, only for the Petitioner to file the present application on the eve of judgment, employing the same delaying tactic for the third time. 12.Regarding the site visit, the deponent averred that on 4th March 2026, Hon. Lady Justice T. Murigi directed that a site visit be conducted and a report on the status of the project filed in Court. She asserted that the Petitioner insisted on an additional site visit after the Court had already conducted one. She stated that a report from the locus in quo had been filed by the Deputy Registrar, Hon. Vincent Kiplagat. She further averred that the Petitioner had agreed that the 2nd Respondent, being the statutory planning and development control authority, would conduct the inspection and file a report, and therefore could not object to the identity or institutional affiliation of the expert it had consented to. 13.She averred that the site visit was duly conducted on 31st March 2026 by Mr Erick Okuku, the Assistant Director of Planning Compliance and Development Inspection, along with other officials from the 2nd Respondent, in the presence of representatives from both parties. She stated that at no point during or immediately after the visit did the Petitioner raise any objection to the manner in which the inspection was conducted. 14.She stated that Mr. Okuku’s report outlined the following findings: the development was duly approved on 23rd August 2023 for a proposed 21-storey, 124-apartment project; all setbacks had been observed as per the approved plan, including a front setback of 7.2 metres, voids, and a riparian wayleave of 33 metres and 17 metres; no windows faced the neighbouring property; all partitioned units conformed to the approved plans; the ground coverage was 7.3% and the plot ratio 1,943, both within the permissible PLUPA Regulations; and the development was being implemented in strict adherence to PLUPA Regulations and should be allowed to proceed to completion. 15.The deponent argued that the Petitioner's characterization of the report as biased, irrational, and legally flawed was unfounded, asserting that a report does not become biased merely because its findings do not align with the Petitioner's preferred outcome. She argued that no actual partiality, bad faith, or departure from professional standards had been demonstrated. She maintained that Mr Okuku falls within the category of officials whose expertise the Court had sought when issuing its order of 4th March 2026. She contended that the report is presumed to be regular and professionally competent, reflecting the standards associated with official acts. 16.Regarding the complaint regarding the absence of technical instruments, the deponent averred that the Physical Planning (Building) Regulations 2021 do not specify particular instruments for a compliance inspection of this kind. She argued that Mr Okuku conducted the inspection in accordance with the approved building plans, which is the standard method for verifying development compliance, supplemented by on-site measurements and observations. She argued that the absence of surveying equipment does not invalidate the findings. 17.The deponent asserted that the Court had competing expert assessments from both sides, including a Planning Report by John Mbau of Turning Point Consultants Limited, dated 8th November 2024, on behalf of the Petitioner. She argued that the request for a third expert visit was an attempt to delay the proceedings and obtain a more favourable expert opinion, amounting to an abuse of the Court process. 18.Regarding the request to cross-examine Mr Okuku, the deponent averred that the appropriate time to raise that issue was when directions were given or immediately upon receipt of the report, which was not done. She argued that raising the matter on the eve of judgment was unprocedural and intended to delay the proceedings. She maintained that any dispute regarding the evidentiary weight, methodology, or reliability of the site visit report was solely within the Court's assessment of evidence at the judgment stage and was not a proper basis for a further interlocutory application. 19.The deponent averred that the 1st Respondent continues to suffer severe financial prejudice as a result of the injunction, which has remained in force since 7th October 2024, thereby stalling construction and resulting in breached contractual obligations to purchasers, accruing loan interest, and eroding investor and purchaser confidence. She contended that judgment was the only means of obtaining substantive relief and that any further delay would exacerbate these losses. 20.The deponent contends that litigation must come to an end, that the continued filing of applications amounted to an abuse of the Court process and a waste of judicial time. She argued that the Petitioner would not be prejudiced if the judgment is delivered as scheduled, given its participation in the proceedings. DIVISION - The Response 21.In a further affidavit dated 12th May 2026, the deponent asserted that the present application was not a delaying tactic but a plea for justice. He reiterated that the site visit report prepared by Mr Erick Okuku was biased, irrational, and legally flawed. He argued that a change of advocates cannot be characterized as a delaying tactic. 22.He confirmed that the Deputy Registrar, Hon. Vincent Kiplagat, had filed a report in which a recommendation was made at the site that beacon positions should be formally ascertained and verified by a qualified licensed surveyor for clarity. He asserted that Mr Okuku did not comply with that recommendation and had instead relied solely on the building plan as his reference. 23.The deponent averred that during the site visit, he inquired and questioned the assumption-based technique employed by Mr Okuku to confirm the project’s status, asserting that a video recording attached to his supporting affidavit verified this. He further averred that Mr Okuku made his findings without using any measurement tools, and confirmed on video that there was "no need to measure" when asked about how he determined the distance from the road. 24.He contended that it was absurd for an expert to present conclusions without explaining the analytical process used to reach those conclusions, which rendered the report biased and legally flawed. He averred that due to the flawed nature of the 2nd Respondent's report, the Petitioner sought the appointment of an independent surveyor to verify the measurements against the submitted report. 25.Regarding the timing of the cross-examination request, he argued that the issue could not have been raised when the directions were given because the Petitioner had trusted Mr Okuku to conduct the site visit professionally, especially since the County had indicated it would not participate in the application. He contended that Mr Okuku had instead based his findings on mere assumptions. 26.The Petitioner averred that it is imperative for the judgment to be arrested so that Mr Okuku can be cross-examined on how he arrived at his findings. 27.The application was canvassed by way of written submissions. DIVISION - The Petitioner’s Submissions 28.The Petitioner filed its submissions dated 12th May 2026. 29.On behalf of the Petitioner, Counsel submitted that Order 18 Rule 11 of the Civil Procedure Rules empowers this Court to conduct or direct a site inspection for the purpose of clarifying matters in dispute, but such an inspection must produce objective, verifiable, and technically sound observations, not speculative conclusions. 30.Counsel submitted that the site visit was legally flawed and incapable of producing a conclusive report for the following reasons: the 2nd Respondent failed to identify or authenticate the existing beacons, thereby avoiding disclosure of the fact that the 1st Respondent had constructed beacon-to-beacon and occupied virtually 100% of the suit property contrary to the title conditions and Nairobi County zoning guidelines; the 2nd Respondent failed to properly ascertain and measure the riparian reserve setback and instead included unsupported measurements; and the 2nd Respondent failed to identify and verify the sewer connection despite making findings thereon. Counsel submitted that no actual measurements were taken on site with the required survey equipment, rendering the report's findings and measurements unverified and unreliable. 31.Counsel submitted that it is settled law that expert or technical evidence must disclose the methodology, factual basis and reasoning process on which it is based. Counsel relied on Koimburi v Mwangi (2022) KEELC 15406 (KLR), where the Court held that expert opinion is worthless unless it is based on a substratum of facts proved to the satisfaction of the Court. It was further held that an expert must not merely present conclusions but must also demonstrate the analytical process that leads to those conclusions. 32.Counsel further submitted that a valid site visit in matters involving boundaries, setbacks, and planning compliance must include the identification and authentication of physical beacons, the use of appropriate survey instruments, verification of distances and physical features on the ground, and a methodology capable of independent verification. Relying on Embakasi Properties Ltd and another v Commissioner of Lands and another (2019) eKLR, Counsel submitted that authentication requires the report to be accurate, genuine, and independently verifiable. Counsel further submitted that a survey exercise conducted without the essential processes of measurement and beacon identification ceases to be an objective technical assessment and instead becomes speculative and unreliable. 33.Counsel submitted that expert evidence derives its probative value from the reliability of its methodology and factual basis, and that a report based on approximation, lacking measurable data and failing to disclose any verifiable process, is devoid of evidentiary weight. Counsel relied on Azzuri Limited v Pink Properties Limited [2015] KEELC 458 (KLR), where the Court held that a survey report prepared using the wrong methodology was of no evidentiary value. Counsel reiterated the holding in Koimburi v Mwangi (supra) that expert opinion unsupported by proven facts is worthless. 34.Counsel further submitted that the impugned report contained no measurable data, disclosed no methodology, and provided no basis on which its findings could be tested, rendering it methodologically defective, unreliable, and incapable of assisting the Court in determining the issues in dispute. 35.Counsel submitted that the report was heavily contested on its methodology, factual basis and conclusions, and that only the author of the report could explain how the findings were reached. Counsel submitted that it is a fundamental principle of fair hearing that a party should be given an opportunity to test adverse evidence through cross-examination. 36.Counsel contended that it is necessary to cross-examine Mr Okuku so as to establish how he reached his conclusions, to test the credibility and reliability of the methodology employed, and to assist the court in determining the weight, if any, to attach to the report. Counsel further submitted that, given that the report purported to determine critical factual issues, it was only fair that its author be examined on oath. Counsel urged the Court to strike out the report in its entirety. DIVISION - The 1St Respondent's Submissions 37.The 1st Respondent filed its submissions dated 13th May 2026. 38.On behalf of the 1st Respondent, Counsel submitted that the following facts were not in dispute: the site inspection was ordered by the Court on 4th March 2026; it was conducted by officers of the 2nd Respondent pursuant to those directions; the Petitioner agreed to the 2nd Respondent conducting the inspection; the Petitioner's representatives were present throughout; no objection was raised during or immediately after the inspection regarding the identity of the inspecting officer, the methodology employed, or the absence of instruments; and the application was filed after judgment was reserved. 39.Counsel submitted that a party is bound by its conduct adopted in the proceedings and cannot withdraw from positions voluntarily taken to the prejudice of the opposing party. To support this argument, reliance was placed on Bia Tosha Distributors Ltd v Kenya Breweries Limited and 6 Others (Supreme Court Petition 15 of 2020), where the Court held that it was absurd for a party to rely on and repudiate the same set of facts simultaneously. Counsel further submitted that Section 120 of the Evidence Act barred the Petitioner from denying a state of affairs which, by its conduct, representation or omission, had led the Court and the 1St Respondent to accept. Counsel argued that the Petitioner had every opportunity to request a licensed surveyor, GPS verification, beacon confirmation or an alternative methodology but chose not to do so. It was submitted that the Petitioner's conduct was consistent with a pattern of seeking successive site visits until a report favourable to its narrative was obtained. 40.Counsel submitted that Mr Erick Okuku, the Assistant Director of Planning Compliance and Development Inspection, has the expertise sought by the Court in its order of 4th March 2026, whose mandate is based on Section 72 of the Physical and Land Use Planning Act, 2019. Counsel submitted that the report is presumed to be regular and associated with official acts. Counsel further submitted that the Petitioner failed to demonstrate fraud, bad faith, bias, collusion, procedural illegality or factual falsity, with the only complaint being the absence of measuring instruments. 41.Counsel contended that this argument fundamentally misconceived the nature of the exercise, which was a planning compliance inspection rather than a cadastral survey. Counsel submitted that a planning compliance inspection entails a comparison between the approved development plans, the actual development on site, and the applicable planning requirements. Counsel contended that the Physical Planning (Building) Regulations 2021 do not specify any particular instruments for conducting such an inspection. 42.Counsel submitted that the report demonstrated, among other things, that the development was duly approved, all setbacks conformed to the approved plans, no window faced the neighbouring Muthaiga Heights property, all partitioned units accorded with approved plans, and the ground coverage and plot ratio were within the permissible PLUPA Regulations. 43.Counsel further submitted that the Court has comprehensive expert material from multiple sources, including the Petitioner's own report by John Mbau, the Deputy Registrar's report filed on 26th February 2026, and the 1st Respondent's Survey and Planning Report of 26th July 2025. Counsel contended that the application for a further inspection amounted to no more than forum shopping for a favourable expert opinion. 44.Counsel submitted that Mr Okuku had not been called by the 1st Respondent as a partisan witness but had acted in his official capacity in accordance with the Court’s directions. Counsel submitted that cross-examination is appropriate only when credibility is genuinely in issue, when bias or bad faith is alleged on evidentiary grounds, or when conflicting affidavit evidence cannot otherwise be resolved. Counsel contended that none of these conditions applied in the present case. 45.It was further submitted that the Petitioner's disagreement with the methodology and conclusions relates to the evidential weight, not the admissibility or credibility of the report. Counsel submitted that the proper time to seek cross-examination was during the directions hearing on 4th March 2026 or immediately upon receipt of the report, neither of which the Petitioner did. Reliance was placed on Law Society of Kenya v Faith Waigwa & 8 Others [2015] KEHC 3209 (KLR), where the Court cautioned that cross-examination should not be used to convert the hearing of an interlocutory application into a mini-trial and should be sparingly granted. 46.Counsel argued that Courts do not order repeated inspections merely because one party is dissatisfied with the findings, as doing so would set a dangerous precedent allowing litigants to continually seek new inspections until a favourable report is obtained. It was argued that the Petitioner had participated in the inspection, raised no objections, demonstrated no illegality, and produced no contradictory technical evidence. Counsel further contended that review of technical processes should not extend to replacing conclusions in the absence of illegality, irrationality, or procedural impropriety, none of which had been proven. Counsel submitted that the correct approach was to assess all evidence at judgment. 47.Counsel submitted that the Petitioner has engaged in a consistent pattern of delay at every critical stage of the proceedings, having previously filed a contempt application that vacated the substantive hearing dates of 29th and 30th July 2025, subsequently changed advocates, causing further delay, and now filed the present application on the eve of judgment for the third time. Counsel submitted that the Petitioner had waited until the judgment date neared before filing the application, the inevitable effect being to delay judgment and prolong injunctive restrictions against the 1st Respondent. 48.Counsel relied on Hassan N. Charo v Khatib Mwashetani & Others [2014] eKLR, which adopted the definition of abuse of process outlined in Black's Law Dictionary. Counsel further relied on Article 159(2)(b) of the Constitution and Sections 1A and 1B of the Civil Procedure Act to emphasize the duty to dispose of disputes expeditiously. Further reliance was placed on Ondieki v General & Another (Civil Appeal 46 of 2015) [2026] KEHC 656 (KLR), which affirmed that litigation must come to an end. 49.Counsel submitted that the site visit report was prepared in accordance with the Court’s directions by officers acting within their statutory mandate. Counsel argued that any alleged flaws in methodology related only to evidential weight, which the Court was fully capable of assessing at judgment alongside the complete evidentiary record. It was further argued that the application is a belated and opportunistic attempt to reopen proceedings after the hearing had concluded and judgment had been reserved, with no legal or factual basis. In conclusion, Counsel urged the Court to dismiss the application and proceed to deliver judgment as earlier scheduled. Analysis And Determination 50.Having considered the application, the respective affidavits and the rival submissions, the following issues arise for determination:i.Whether the site visit report dated 31st March 2026 should be struck out;ii.Whether a fresh site visit should be ordered; andiii.Whether the Petitioner's advocate should be permitted to cross-examine Mr Erick Okuku. 51.Regarding the first issue, the site visit report was prepared by Mr Erick Okuku, the Assistant Director of Planning Compliance and Development Inspection, pursuant to this court's order of 4th March 2026. On a prima facie basis, his report is presumed to be regular as it constitutes an official act. The Petitioner disputes its methodology, reliability and conclusions. The Petitioner has not demonstrated fraud, bad faith, collusion, or deliberate falsification. The concerns raised—namely the absence of surveying instruments, reliance on the approved building plans, and the inspection methodology—relate to the quality of the process, not its legality. 52.This Court further notes that the inspection was a planning compliance inspection to verify the development’s conformity with its approved plans and applicable planning requirements. The Petitioner conflates this exercise with a cadastral survey intended to establish boundary positions and beacon locations. These are distinct exercises governed by different methodologies. The Physical Planning (Building) Regulations, 2021, do not specify any particular instruments for a planning compliance inspection. 53.Critically, the Petitioner agreed to the 2nd Respondent conducting the inspection, was represented throughout the site visit, and raised no objections during or immediately afterwards to the methodology employed, the absence of instruments or the identity of the inspecting officer. 54.The complaints raised concern the evidentiary weight, not the admissibility, which are issues that this Court can assess at the judgment stage alongside all the expert material on the record. 55.Regarding the second issue, this Court has a substantial body of expert material: the Petitioner's own planning report by John Mbau of Turning Point Consultants Limited, dated 8th November 2024; the Deputy Registrar's report filed on 26th February 2026; the 1st Respondent's Survey and Planning Report dated 26th July 2025; and the 2nd Respondent's site visit report of 31st March 2026. Accordingly, the court is well-equipped to determine the issues in dispute at the judgment stage by evaluating the competing expert assessments on record. 56.The Petitioner has not demonstrated any illegality, irrationality, or procedural impropriety in the conduct of the inspection that would justify reopening proceedings that have reached their final stage. The application was filed after the judgment date had been reserved. To order a fresh site visit at this stage would be to reopen a concluded case without legal justification, which is in direct contravention of the overriding objective under Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(b) of the Constitution. 57.Regarding the third issue, the right to cross-examination is a fundamental tenet of a fair trial as it affords a party the opportunity to test the credibility, accuracy and veracity of the evidence tendered against them. It is well established that cross-examination of a deponent or witness is not available simply because a party disputes the conclusions of a report. In Law Society of Kenya v Faith Waigwa & 8 Others [2015] KEHC 3209 (KLR), the Court cautioned that cross-examination should not be used to convert the hearing of an interlocutory application into a mini-trial and should be granted sparingly. In the matter at hand, the appropriate time to seek cross-examination of a court-appointed expert is when directions are given or, at the latest, immediately upon receipt of the report. The Petitioner did neither. The report was filed pursuant to the order of 4th March 2026, while this application was filed on 21st April 2026, by which time a judgment date had already been reserved. 58.Mr Okuku was not called as a partisan witness by either party. He conducted the site inspection pursuant to a direction of this Court in his capacity as a statutory official of the 2nd Respondent. The cross-examination of a Court-directed official is not a matter of course; it requires a proper foundation and must be sought at the appropriate time. 59.The Petitioner's explanation that it could not have anticipated the need for cross-examination because it trusted Mr Okuku does not withstand scrutiny. The Petitioner was present during the site visit and, based on its own evidence, raised questions about the methodology at the time. If those concerns were sufficiently serious to justify cross-examination, the obligation was on the Petitioner to seek proper directions immediately upon receiving the report, rather than waiting until just before judgment. 60.Any dispute regarding the methodology, reliability, or weight of the report falls squarely within this Court's assessment of all the evidence at the judgment stage. This Court does not require cross-examination to carry out that function; it has the full record, including the Petitioner's own expert report, before it. 61.In light of the foregoing, I find that the application is without merit and is hereby dismissed with no orders as to costs. RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 22ND DAY OF MAY, 2026.…………………………………….HON. T. MURIGIJUDGEIN THE PRESENCE OF:Mingo for the Petitioner/ApplicantMohammed for the 1st RespondentMs Shishia holding brief for Murango, the 2nd RespondentAhmed – Court assistant