Kailutha & 4 others v Adjudication Officer Ruiri/Rwarera Adjudication Section & 2 others; M’muthuri & 13 others (Interested Parties) [2023] KEELC 20580 (KLR)

Kailutha & 4 others v Adjudication Officer Ruiri/Rwarera Adjudication Section & 2 others; M’muthuri & 13 others (Interested Parties) (Environment & Land Petition 3 of 2020) [2023] KEELC 20580 (KLR) (11 October 2023) (Ruling)

Neutral citation: [2023] KEELC 20580 (KLR)

Republic of Kenya

In the Environment and Land Court at Meru

Environment & Land Petition 3 of 2020

CK Yano, J

October 11, 2023

Between

Stanely Kailutha

1st Petitioner

Kanyili Francis

2nd Petitioner

Benard Kimathi

3rd Petitioner

Geoffrey Aburuki

4th Petitioner

Joseph Mugambi

5th Petitioner

and

The Adjudication Officer Ruiri/Rwarera Adjudication Section

1st Respondent

The Land Registrar Meru Central District

2nd Respondent

The Honourable Attorney General

3rd Respondent

and

Justus M’ikiao M’muthuri

Interested Party

Robert Mongo

Interested Party

M’minyori M’kiria Mememba

Interested Party

Wilson Kinyua Mutua

Interested Party

Amon Muthamia Igweta

Interested Party

Justus MbaabuIkamati

Interested Party

Jane Karambu Ikamati

Interested Party

Jeremano Samaki M’arithi

Interested Party

Peter Mugambi Mucheki

Interested Party

Peter Kenneth Muthuri

Interested Party

David Kirimi Mwithimbu

Interested Party

Danielkibiti M’gachara

Interested Party

Abdi Hassan Guyo

Interested Party

Philip Kangethe

Interested Party

Ruling

1. This matter was consolidated with Petition No. 2 of 2019 and the same are now heard together. The matter is part heard. Indeed, the petitioners in Petition No. 2 of 2019 has already closed his case and matter was scheduled for further hearing. However by notice of motion application dated 31st July, 2023, Stanley Kailutha Kailutha, the 1st petitioner in petition no. 3 of 2020 is seeking for an order to issue directing the Deputy Registrar of this court to conduct a scene visit on land Parcel No. Ruiri/Rwarera Adjudication Section 750, 752, 815, 831, 2447, 2969, 3999, 5670, 5997, and 6266 to establish who is in occupation of the suit land, developments thereon, installations on the ground and file a report.

2. The application is premised on the grounds thereon and supported by the affidavit of Stanley Kailutha, the applicant sworn on July 31, 2023 wherein he avers that the petition was consolidated with petition No. 2 of 2019 and the two are now heard together. That prior to the order for consolidation, a scene visit had been conducted on petition No. 2 of 2019 and facts on the ground were ascertained. The applicant now wants scene visit on the parcels referred to above as they were never visited during the earlier visit.

3. The application is opposed by the 5th, 10th, 11th and 14th interested parties in petition No. 3 of 2020 vide a replying affidavit dated 5th September,2023 sworn by Philip Kangethe, the 14th interested party. It is their contention that the application for scene visit should have been raised at the pre-trial stage before the suit was consolidated and set down for hearing. It is therefore their contention that the application is an afterthought and a delaying tactic. The said interested parties aver that in the event the court allows the application, the costs of the scene visit should be borne by the applicants.

4. The other parties to the suits are not opposed to the application but want the applicants to meet the costs of the intended scene visit.

5. The court has considered the application and the submissions made. The only issue for determination is whether or not the orders sought in the application should be allowed as prayed. As already stated, this is a consolidated suit. It is not disputed that a scene visit has been made and a report filed in respect of parcels in one of the petitions. Considering that the envisaged visit report may assist the court in arriving at a just decision, and further considering that no prejudice will be suffered by any party because of the envisaged visit, since the parties who have already testified and closed their case may re-open it and costs, I will allow the application for scene visit as prayed. The applicants will however meet the costs of the said visit.

6. In the result, the notice of motion dated July 31, 2023 is allowed in terms of prayers 1 and 2 thereof. A report to be filed within 30 days. The applicants shall meet the costs of the scene visit.

7. Orders accordingly.

DATED, SIGNED AND DELIVERED AT MERU THIS 11TH DAY OF OCTOBER, 2023. C.K YANOJUDGE