https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4860

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT KERUGOYA** **ELCLC NO. EO16 OF 2025** **JOSEPH MWANGI NDUKI ………………………………….. 1ST PLAINTIFF** **VIRGINIA KARIUKO NJOGU ………….…………………. 2ND PLAINTIFF** **VERSUS** **THE REGISTERED TRUSTEES,** **JAMIA MOSQUE, KAGIO ……………………………………. DEFENDANT** **AND** **ERASTUS NJUE NJERU …………………………….. 1ST INTERESTED PARTY** **BAGAJA DABASICHA HAJAA ……………………. 2ND INTERESTED PARTY** **RULING** 1. When this suit came up for mention on 9th July 2026, Mr. C. S. Macharia, the learned counsel holding brief for Ngigi Gichoya, for the plaintiff, made an oral application for the matter be referred to the County Surveyor, Kirinyaga, with directions to visit the suit property and file a report before any further step is taken in this suit. The said counsel opined that such a report will help settle the issue of ownership of the suit property, as the one filed with the defendant’s memorandum of appearance does not specify the plot number. 2. Mr. Asimwe, learned counsel for the defendant opposed the application and submitted that they have filed a surveyors’ report showing the suit property belongs to their client, the defendant. Counsel referred the court to **Order 1 Rules 1 & 3 of the Civil Procedure Rules**, and pointed out that the provision requires a party to sue the correct party. The counsel further submitted that the plaint does not disclosed a reasonable cause of action against the defendant. Counsel urged the court to exercise its discretion under **Order 2 Rule 15 of the Civil Procedure Rules** and strike out the suit with costs as it is scandalous. 1. Ms. Mokaya, learned counsel for the interested parties, informed the court that her clients do not wish to participate in the suit any longer. 2. In response, counsel for the plaintiff, submitted that if the defendant does not agree with their proposal for the County Surveyor to visit the suit property and file a report, then the court should proceed to set down the suit for hearing. 3. The issues arising from the learned counsel’s submissions for determinations by the court are as follows: 1. *Whether a reasonable case for an order for the County Surveyor, Kirinyaga, to visit the suit property and file a report has been made.* 2. *Whether the plaint discloses a cause of action against the defendant.* 3. *What order to issue.* 4. The court has carefully considered the submissions by counsel for the parties herein, the pleadings and come to the following conclusions: 1. The plaintiffs commenced this suit through the plaint dated 17th April 2025, against the defendant. The plaintiffs have averred at paragraphs 3 to 7 of the plaint inter alia that they are joint owners of **Plot No. A311**, formerly **Mwerua/Kagio/2636,** suit property, and that the defendant has illegally trespassed thereon. The plaintiffs prays for orders inter alia for the defendant to be ordered to give vacant possession of the said plot and, in default, be forcefully evicted, with OCS Kiamaciri Police Station providing security. 2. The defendant filed a statement of defence dated 22nd August 2025, joining issues with the plaintiffs and at paragraph 7 pleaded it was in occupation of **Plot No. 459 Kagio, formerly Mwerua/Kagio/2638,** and not the suit property. 3. Before the court can make a determination as to whether the plot the defendant is occupying is **Plot No. 459 Kagio**, formerly **Mwerua/Kagio/2638** or **Plot No. A311**, formerly **Mwerua/Kagio/2636**, suit property, evidence would need to be presented and considered. Considering that no notice of preliminary objection or formal application has been filed by the defendant raising any preliminary objection to the plaintiff’s suit, and as the statement of defence filed does not contain a paragraph with averments that can be construed to amount to a preliminary objection, the oral application to strike out the suit is misplaced. Should the defendant desire to take that route, then the appropriate notice should be filed and served without undue delay. * 1. It is trite that parties are bound by the pleadings. I hasten to add that it is the duty of each and every party in a litigation to collect, collate, file and serve its evidence in compliance of **Order 11 of Civil Procedure Rules.** That if the plaintiffs desired to have a County Surveyor visit the suit property and prepare a report for their use as part of their documents in the litigation, there was nothing stopping them from such an enterprise. The claim that the report filed by the defendant does not contain the property’s reference does not on its own, cannot suffice or be the basis of ordering for a joint survey exercise, as the plaintiffs appear to believe. Needless to restate, the defendant was at liberty to file and serve their documents, such as the surveyors report filed with the memorandum and statement of defence, as it deems necessary in its defence. It is clear from the submissions made by counsel, that the defendant was opposed the proposal for a joint survey, thus confirming that it is satisfied with the report it has filed. * 1. This Court is obligated under the constitution and statutes to be impartial at all times. The court is therefore not expected to pray any role in the collection and collating of documents to be used by any party in the litigation, as that is primarily the individual party’s responsibility. However, in exceptional cases, the court may direct the filing of such documents as may be necessary and relevant in determining the issues before it. In this matter, the court finds the plaintiffs have not established any reasonable basis for an order of a joint survey to be issued. 2. That as the interested parties have indicated through their counsel that they no longer wish to participate in the proceedings, their names should be struck out of the suit. 1. In view of the foregoing conclusions, and so as to avoid any further delay in this suit, the court finds and orders as follows: 1. **That the plaintiffs’ request for an order for a joint survey to be done by the County Surveyor is without merit and is declined.** 2. **That the defendant’s prayer for the plaint to be struck out for not disclosing a reasonable cause of action is equally devoid of merit and is rejected.** 3. **That the interested parties' names are hereby struck out of this suit as they have indicated through their counsel that they no longer wish to participate in the proceedings.** 4. **That any party who is yet to comply with Order 11 of Civil Procedure Rules is granted a last opportunity to do so in thirty (30) days, and any party served will have corresponding liberty to respond as appropriate.** 5. **That the matter will be given a date for mention to fix a hearing date.** It is so ordered. **DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 29TH DAY OF JULY 2026**. **S. M. Kibunja** **ELC JUDGE** **In the presence of:** Plaintiffs – Mr. C.S. Macharia. Defendant – Mr. Asimwe. Interested parties – Mr. Alienda for Mokaya Kinyua/Charles - Court Assistants **S. M. Kibunja** **ELC JUDGE**