Kipkemboi & 4 others v Commissioner of Lands & 7 others [2024] KEELC 422 (KLR)

Kipkemboi & 4 others v Commissioner of Lands & 7 others (Environment and Land Case Civil Suit 924 of 2012) [2024] KEELC 422 (KLR) (31 January 2024) (Ruling)

Neutral citation: [2024] KEELC 422 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment and Land Case Civil Suit 924 of 2012

LN Mbugua, J

January 31, 2024

Between

David Kipkemboi

1st Petitioner

Josephine Moindi

2nd Petitioner

David Kamunya Runo

3rd Petitioner

Singuo Holdings Limited

4th Petitioner

Timothy Ondieki

5th Petitioner

and

Commissioner of Lands

1st Respondent

Registrar of Titles

2nd Respondent

Director of Surveys

3rd Respondent

Attorney General

4th Respondent

Microtech Accessories Limited

5th Respondent

Bangal Trading Limited

6th Respondent

Investment Co. Ltd

7th Respondent

Mokowe Traders Limited

8th Respondent

Ruling

1. PW2 was in the process of producing 3 documents in his affidavit of 11. 9.2018 as exhibits 16,17 and 18 when various objects were raised. By the time of writing this ruling, the petitioner had abandoned the production of exhibit 18. The ruling hence relates to production of exhibit 16 and 17. It is averred that the documents being referred to are not the annexures that are at page 321 ‘A’ as the document at the aforementioned page is for David Kipkemboi. It is also averred that the documents don’t have annexure stamp.

2. Counsel for the petitioner contends that PW2 is producing his affidavits as his oral evidence hence the heading of the affidavits is a misnormer and that the affidavit can be treated as his statement while the annexures are his exhibits.

3. I have keenly perused paragraph 4 in the affidavit of 11. 9.2018 where PW2 states “I now produce a copy of the said registered grant marked ‘TO 1’. The grant in question is the one at page 321 “A” which is however not marked “T01”. Nevertheless, the Grant No. mentioned is one and the same; that is Grant No. 105312. There is therefore no ambiguity as to what document is being cross referenced at paragraph 4 of the said affidavit.

4. As for the document marked “TO2”, the same is so marked at page 325 as Grant No I.R. 105310.

5. In the case of Alexander Khamisi Mwimi v. Independent Electoral and Boundaries Commission & 2 others (2018) eKLR, the question of the Rules of Procedure vs Substantive Justice were discussed at length where it was stated that the infraction complained of must go to the root of the dispute that is before the court if the said rules of procedure are to prevail.

6. In the case at hand, it is clear in the body of the affidavit in question that the witness is producing the two grants. The same have been availed. In the circumstances, the objections raised by defendants are dismissed. The two grants at page 321 ‘A’ and page 328 are produced as exhibits 16 and 17.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JANUARY, 2024 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Munyua for PetitionerAllan Kamau for 1st - 4th RespondentsMr. Cohen Amanya and M/s Hadijah for 5th, 6th and 8th RespondentsMrs Ahomo holding brief for Mr. Issah for 7th RespondentCourt Assistant: Eddel