https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3359

Mwanzi & another (Both trading as "Kayole Hekima Academy Educational Centre") v Mwangi & 4 others (Environment and Land Case 126 of 2011) [2026] KEELC 3359 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELC 3359 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case 126 of 2011 CA Ochieng, J June 4, 2026 Between Aggrey Atsiavula Mwanzi 1st Plaintiff Sofia Nabangala Ndolo 2nd Plaintiff Both trading as "Kayole Hekima Academy Educational Centre" and Ben Joseph Mwangi 1st Defendant Bishop Justus Wanjala (Sued as representative & trading as Light House Church) 2nd Defendant City Council Of Nairobi 3rd Defendant Samuel Ndumbe Njoroge 4th Defendant Stephen Odoyo t/a Brookfield Academy 5th Defendant Ruling 1.What is before the Court for determination is the 4th and 5th Defendants’ Notice of Motion application dated the 18th February 2026 where they seek the following Orders:a.Spent.b.That the report arising from the site visit conducted on 11th November, 2025 by the Deputy Registrar (DR) be expunged from the record.c.That the said report be declared inadmissible and of no probative value for purposes of determining the issues in this suit.d.That the court be pleased to disregard entirely the findings and conclusions contained in the said report.e.That in the alternative the court be pleased to order a fresh site visit with a licensed surveyor present to ascertain the issues of the alleged encroachment.f.That costs of this application be in the cause. 2.The application is premised on grounds on its face and on the 4th Defendant’s supporting affidavit. He avers that after hearing this suit, the Court directed that a site visit be conducted, which was done on 11th November 2025 and a report was prepared and filed by Hon. Kiplagat, Deputy Registrar. He further avers that findings in the said report are biased and points out that the Deputy Registrar made a determination of the suit land boundaries by making an assumption that the school by the 5th Defendant occupies about 25 feet by 30 feet, yet determination of boundaries is a technical exercise requiring professional survey expertise, which was absent during the site visit. 3.He contends that the Deputy Registrar also exceeded the scope of this Court’s directive by introducing new evidence in finding that there was encroachment and that the 4th Defendant did not produce any ownership documents yet the same had been produced during the hearing and there was no requirement for production of the same during the site visit. 4.He contends that if the impugned report is not expunged prior to determination of the suit, the 4th and 5th Defendants stand to suffer prejudice as the Court may rely on an incompetent report at the submission stage. Responses 5.The 1st Plaintiff filed a replying affidavit in opposition. He avers that in its directions that a site visit be conducted on the suit property, the Court did not issue any directions on the engagement of a licensed surveyor at the site visit. He however points out that during the site visit, the 1st Defendant was accompanied by Mr. Charles Kaniaru, who the 1st Defendant claimed to be a retired government surveyor. 6.He points out that during the exercise, the Deputy Registrar directed each party claiming interest in the suit property to point out its beacons and establish its claim on the land. He further avers that the exercise was conducted impartially and no complaints of favoritisms were made. He insists that the impugned report represents the Deputy Registrar’s physical observation of the state of affairs at the suit property and does not introduce any new evidence. 7.The 2nd Plaintiff also filed a replying affidavit in opposition. She avers that the 4th and 5th Defendants have failed to demonstrate how biased the impugned report is as all parties were given ample time to present their views on the encroachment in the presence of their advocates. Further, that the 4th and 5th Defendants did not object to Mr. Charles Kaniaru (retired surveyor) who was present as a witness of the 1st Defendant and not a professional, giving his views. 8.He insists that the impugned report was based on observations and presentation by the parties/the team present and not scientific or technical findings. 9.The 3rd Defendant filed a replying affidavit sworn by Geoffrey Cheruiyot, its Director, Geographic System (GIS) in Lands Subsector. He avers that the recording of the existence, location and visible developments on the suit land in the impugned report is a matter of ordinary observation and does not require specialized survey expertise. Further, that any concerns regarding the absence of a licensed surveyor go to the probative weight to be attached to the site visit report by the Court, rather than to its admissibility or competence. 10.He further states that the impugned report reflects that all parties were present during the site visit, either in person or through their respective Counsels and that the report does not capture any protest from the 4th and 5th Defendants or their Counsel regarding the lack of a licensed surveyor or the presence of the 1st Defendant’s witness, a former surveyor. 11.He also contends that since the matter has been in Court for over fifteen (15) years, expunging the site visit report from the record or conducting a fresh site visit would result in further inordinate delay at the prejudice of the 3rd Defendant. 12.The application was canvassed by way of written submissions. Submissions 13.The 4th and 5th Defendants submit that the impugned report is fundamentally defective and incapable of reliance by this Court for reasons outlined in their affidavit in support of the motion. Further, that the inclusion of the determination of boundaries and encroachment is a technical and scientific exercise, requiring expert input. 14.They further submit that reliance on the impugned report would violate fundamental principles of fair hearing as they were not accorded an opportunity to challenge the methodology used to make conclusions, that they have encroached on the suit land. 15.The 1st Plaintiff relies on the case of Yamo v Yamo (Environment and Land Appeal E022 OF 2023) [2024] KEELC 7540(KLR) to submit that this Court has power to issue directions for a locus in quo to allow parties to establish their boundaries and adduce evidence in support of their claim. 16.It also relies on the case of Sojanm Spring fields Limited v Githinji & 4 others [2024] KECA 953 (KLR) to submit that no basis has been established to expunge the impugned locus in quo report. 17.On her part, the 2nd Plaintiff submits that the impugned report should form part of the record to aid the Court in writing its judgment as the same was done in a transparent and unbiased manner. She insists that all parties during the site visit were afforded a reasonable opportunity to inform the Deputy Registrar of the facts obtaining on the ground and they were accompanied by their respective advocates. 18.She also submits that the role of the Deputy Registrar during the site visit was to report on the status of the suit property and establish encroachment allegations from the ground as alleged by the Plaintiff, which he did. 19.To buttress her averments, she relied on the case of Mwenda (Suing by his Next Friend Jerusha Kanario Mwenda) v Mioro & another (Environment & Land Case E005 of 2023) [2025] KEELC 3282 (KLR) (27 March 2025). 20.On its part, the 3rd Defendant submits that under Section 31 of the Civil Procedure Act and Order 18 Rule 11, Order 40 Rule 10(1) (a) and (c) of the Civil Procedure Rules, this Court is empowered to direct the inspection of any property in dispute and to authorize such observations as may be necessary for the purpose of obtaining full information or evidence. Further, that the procedural conduct of the site visit, strictly complied with the prescribed Rules as it was conducted in a transparent manner that fully upheld the principles of natural justice and the right to a fair hearing as guaranteed under Article 50(1) of the Constitution. 21.It also submits that the 4th and 5th Defendants failed to establish a reasonable apprehension of bias to warrant expunging the report from the record. To buttress its averments, the 3rd Defendant relied on the decisions of Ayoyih v Muhanji[2023]KEELC 17511 (KLR), Waiyaki v Kajiado County Government & 3 others [2025] KEELC 5567(KLR) and Juma Kanga & 299 others v Abdulkadir Ahmed Rahmkahan & 9 others [2021] KEELC 3093(KLR). Analysis and Determination 22.Upon consideration of the instant Notice of Motion application including the respective affidavits and rival submissions, the only issue for determination is whether the site visit report filed by the Hon. Deputy Registrar should be declared inadmissible, expunged from the record and a fresh site visit conducted with the assistance of a licensed surveyor. 23.It is not disputed that a site visit was conducted pursuant to directions issued by this Court after the close of the hearing. It is equally not disputed that all parties and their advocates were present during the exercise and a site visit report dated 11th November 2025 was prepared and filed by Hon. Vincent Kiplagat, Deputy Registrar. 24.The point of departure by the 4th and 5th Defendants is that the Deputy Registrar in drafting the report went beyond this Court’s directive by making findings relating to encroachment and boundaries without the assistance of a licensed surveyor. Further, that the said conclusions are biased, speculative and introduced new evidence to fill gaps in the Plaintiffs’ cases. 25.The Plaintiffs and the 3rd Defendants were unanimous in insisting that the impugned report was based on observations and presentation by the parties and not scientific findings and that the rules of natural justice were observed during the exercise. 26.The Court has power to direct a visit to the locus in quo, as under Section 3A of the Civil Procedure Act, it can issue orders to ensure the ends of justice are met. Further, such a visit is intended to assist the Court to better appreciate the physical state of the property in dispute and the evidence already on record. The observations made during such an exercise do not replace evidence adduced during trial but serve as an aid to the Court in understanding the matters in controversy. 27.Order 18 Rule 11 of the Civil Procedure Rules provides that:“The court may at any stage of a suit inspect any property or thing concerning which any question may arise.’ 28.In the case of Waiyaki v Kajiado County Government & 3 others [2025] KEELC 5567 (KLR), the Court held that:“If evidence before the Court is unsatisfactory or cannot aid the Court in fairly determining a matter, nothing stops the court from ordering a site visit. The Court has the authority to order a site visit in land disputes where physical verification is necessary to resolve issues of boundaries, extent of the land, occupation, or physical developments. This discretion is exercised judiciously to complement, not replace, documentary and oral evidence, ensuring that the court is fully informed before rendering judgment.” 29.Further, in Sojanm Springfields Limited v Githinji & 4 others (Civil Appeal 73 of 2019) [2024] KECA 953 (KLR) (26 July 2024) (Judgment), the Court of Appeal adopted guidelines for conduct of site visits, enumerated in the decision of the Court of Appeal in Tanzania (Korosso, Kwariko, Mugasha, JJ.A.) in Kimonidimitri Mantheakis v Ally Azim Dewji & others (Civil Appeal No 4 of 2018) [2021] TZCA 663 (3 November 2021) as follows:“In the light of the cited decisions, for the visit of the locus in quo to be meaningful, it is instructive for the trial Judge or Magistrate to: one, ensure that all parties, their witnesses, and advocates (if any) are present. Two, allow the parties and their witnesses to adduce evidence on oath at the locus in quo; three, allow cross-examination by either party, or his counsel, four, record all the proceedings at the locus in quo; and five record any observation, view, opinion or conclusion of the court including drawing a sketch plan, if necessary, which must be made known to the parties and advocates, if any.” Emphasis Added 30.I note the Applicants including the Respondents have not disputed that they were all represented during the site visit and granted audience. Further, that there is no indication that there were protests from the 4th and 5th Defendants, during the site visit nor a request to bring in a licensed surveyor. It also emerged that the 1st Defendant’s witness, was even a former surveyor. 31.Based on the facts as presented by all the parties, while associating myself with the decisions quoted and applying them to the circumstances at hand and on perusal of the impugned report, I do not find that the Hon. Deputy Registrar made assumptions, that the school by the 5th Defendant occupies about 25 feet by 30 feet. I opine that the Hon. Deputy Registrar was expected to make observations and report on any conclusions made including indication of boundaries as pointed by the parties. 32.From the report, there is no indication that he made a determination of the boundary during site visit. Further, that the impugned report was based on observations and presentation by the parties and the team present and not scientific or technical findings. It is my considered view that recording of the existence, location and visible developments on the suit land in the impugned report is a matter of ordinary observation, which did not require specialized survey expertise. 33.In the foregoing, I find that the site visit report filed by the Deputy Registrar is admissible and I decline to expunge it, from the record nor order for a fresh site visit to be conducted with the assistance of a licensed surveyor. 34.In the circumstances, I find the instant Notice of Motion application unmerited and will disallow it, but make no Order as to costs. DATED SIGNED AND DELIVERED AT NAIROBI THIS 4TH DAY OF JUNE, 2026CHRISTINE OCHIENGJUDGEIn the presence of:Wangui holding brief for Mungai for 1st PlaintiffMs Amisi for 2nd PlaintiffOgada for 3rd DefendantGachie for 5th DefendantCourt Assistant: Cherono