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ELCPartially AllowedNot stated in judgment

Adika & 12 others v Maina & 5 others (Environment & Land Case 315 of 2014) [2025] KEELC 1357 (KLR)

Environment and Land Court
20 March 2025
1,035 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan land court ordered the Director of Survey to release certified survey records and Deed Plans before trial, but refused to strike out documents or allow early cross-examination.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisumu (E. Asati, J) determined a Notice of Motion dated 15th October, 2024 brought by the 5th and 6th Defendants under Order 11 of the Civil Procedure Rules and section 22 of the Civil Procedure Act. The applicants sought three substantive orders: that the Director of Survey provide the certified record of the suit land, including the Deed Plan to the Plaintiffs' title/Lease/Grant, with a witness summons to issue for trial; that a letter dated 8th April, 2014 by the Director of Survey be expunged from the Plaintiffs' record; and that Land Surveyor Patrick Opiyo be cross-examined on his role in the case. The applicants alleged that survey records had been altered to suit the Plaintiffs and that the Plaintiffs' suit was a sham founded on a compromised survey process. The Plaintiffs, through the 1st Plaintiff George Omolo Adika, opposed the application as misconceived, premature and an attempt to litigate matters reserved for trial. The court, after considering the two authorities cited on the nature and discretion inherent in discovery, held that discovery is aimed at fair disposal of the suit and granted the first prayer, directing the Director of Survey to produce and serve certified copies of the record and Deed Plans within 30 days upon service and payment of requisite charges. It refused expungement of the 2014 letter and pre-trial cross-examination, holding both were matters for trial. The application was found partly merited, with costs in the main suit.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Director of Survey should be ordered to provide the certified record of the suit land including the Deed Plan to the Plaintiffs' title/Lease/Grant and a witness summons issue for trial
  2. 2.Whether the letter dated 8th April, 2014 by the Director of Survey should be expunged from the Plaintiffs' record
  3. 3.Whether Land Surveyor Patrick Opiyo should be cross-examined at this interlocutory stage on his role in the case
  4. 4.Who should bear costs of the application

Key legal issues

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01

Whether pre-trial discovery and production of the Director of Survey's record and Deed Plans should be ordered

Holding

Allowed; production of the certified record and Deed Plans aids fair disposal of the suit and causes no prejudice

Reasoning

Section 22 of the Civil Procedure Act and Order 11 empower the court to order discovery. Discovery is central to litigation and allows parties to discover relevant evidence and facts. The applicant alleged records were altered but produced no evidence of that; nonetheless, production of the suit land record and Deed Plan would aid fair disposal and no prejudice was shown. The court therefore exercised its discretion to order production within 30 days upon service and payment of charges.

p. 3
02

Whether the Director of Survey's letter of 8th April, 2014 should be expunged from the Plaintiffs' record before trial

Holding

Refused; the letter's authenticity and admissibility are matters for trial

Reasoning

The application sought to remove a foundational document from the Plaintiffs' record on the basis it was procured through tampering, but no evidence supported the allegation. As the suit had not been heard, the Defendants would have the opportunity to testify, cross-examine and submit on the letter, and only then could the court determine its authenticity or admissibility. Expungement at the interlocutory stage was therefore premature.

p. 3
03

Whether Land Surveyor Patrick Opiyo could be cross-examined before trial on his role in the matter

Holding

Refused; cross-examination is exercisable at trial once the witness testifies

Reasoning

The applicant sought cross-examination of the Surveyor on his alleged role in legitimizing the Plaintiffs' title. The court held that cross-examination is the applicant's right, which he will be entitled to exercise once the witness testifies at the trial; compelling cross-examination at the interlocutory stage was premature and could be handled at the hearing.

p. 3

Legal principles established

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  • Discovery is aimed at fair disposal of the suit, and where production of documents will aid fair disposal without prejudice, the court may order it in the exercise of judicious discretion

Court orders

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  1. 1.The Director of Survey directed to produce and serve upon the applicant certified copies of the record for the suit land and the Deed Plans for the Plaintiffs' Titles/Lease/Grant within 30 days from service of the order and payment of requisite charges, if any, by the applicant
  2. 2.The details of the suit land and the Plaintiffs' titles/lease/grant to be served upon the Director of Survey by the applicant together with the order
  3. 3.Costs in the main suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Order 11 Civil Procedure Rules and section 22 of the Civil Procedure Act

Relief refused

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Expungement of the letter dated 8th April, 2014 by the Director of Survey from the Plaintiffs' record

No basis laid; the letter's authenticity/admissibility can only be determined at trial after testimony, cross-examination and submissions

p. 3

Cross-examination of Land Surveyor Patrick Opiyo at this stage on his role in the case

Cross-examination is a right exercisable once the witness testifies at trial

p. 3

Costs

Costs in the main suit

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Director of Survey is hereby directed to produce and serve upon the applicant certified copies of the record for the suit land and the Deed Plans for the Plaintifis' Titles/Lease/Grant within 30 days from the date of service of this order upon the Director of Survey and payment of the requisite charges, if any, by the applicant.
p. 3Final orders - production of certified record and Deed Plans
Discovery is aimed at fair disposal of the suit. If production of the record in respect of the suit land and particularly the Deed plan requested for will aid fair disposal of the suit, I see no prejudice in making an order allowing the same.
p. 3Purpose of discovery and judicial discretion
I find that the application is partly merited and allow it in the following terms
p. 3Outcome - partial success
Only then will the court be able to determine as to whether the letter is authentic/admissible or not.
p. 3Authenticity and admissibility of documents determined at trial

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Adika & 12 others v Maina & 5 others (Environment & Land Case 315 of 2014) [2025] KEELC 1357 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1357/eng@2025-03-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.