The Notice of Motion dated 30th March 2026 seeks orders that the County Surveyor, Mbeere South Sub-County, be directed to visit land parcel No. MBETI/GACHOKA/479, conduct a survey in the presence of the parties, establish the status of occupation and developments thereon and thereafter file a report for consideration by the Court.
The application is premised on the grounds that the Respondent has filed an amended defence and counterclaim claiming twelve (12) acres of the suit land by adverse possession whereas the Applicant disputes the alleged occupation. It is therefore contended that a survey report would assist the Court in determining the question of occupation which is central to the Respondent's claim.
The application is opposed through the Replying Affidavit sworn on 9th April 2026. The Respondent contends that the application is an attempt to enlist the Court in gathering evidence for the Applicant. He further points out that both the original plaint and the amended plaint acknowledge his occupation of the suit property and seek his eviction. According to the Respondent, the Applicant cannot now seek a survey to ascertain whether he is in occupation when her own pleadings admit such occupation. He urges that the dispute should proceed to hearing where each party should discharge the burden placed upon it by law.
I have considered the application, the affidavits, the rival submissions and the authorities cited.
The issue falling for determination is whether the Applicant has established sufficient grounds for this Court to exercise its discretion and order a survey and preparation of a report by the County Surveyor.
There is no dispute that this Court has power under Order 18 Rule 11 of the Civil Procedure Rules to inspect property or direct that such inspection be undertaken where the interests of justice so require. Equally, the Court retains inherent jurisdiction under Sections 1A, 1B and 3A of the Civil Procedure Act to make such orders as may be necessary for the ends of justice. However, that discretion is neither automatic nor intended to relieve parties of their evidentiary burden.
Our civil justice system is adversarial. Parties define the issues through their pleadings and are required to prove their respective cases by producing admissible evidence before the Court. The Court is an impartial arbiter and must avoid descending into the arena of litigation by assisting either party in collecting evidence necessary to establish its case.
Section 107(1) of the Evidence Act provides that:
"Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist."
The burden of proof therefore rests upon the party asserting a particular fact and remains throughout the proceedings unless shifted by operation of law. This principle has repeatedly been affirmed by the superior courts including the Court of Appeal in Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR where the Court emphasized that the legal burden rests upon the party who substantially asserts the affirmative of the issue.
The Respondent's counterclaim for adverse possession will succeed or fail depending upon the evidence tendered during the trial demonstrating open, exclusive, continuous and uninterrupted possession for the statutory period. Equally, if the Applicant disputes such occupation, it is incumbent upon her to adduce evidence rebutting that assertion. Such evidence may include documentary evidence, witness testimony, photographs, expert evidence privately obtained or any other admissible material. It is not the function of the Court to commission evidence for either side.
I also find merit in the Respondent's contention that the present application is inconsistent with the Applicant's pleadings. In both the original plaint and the amended plaint, the Applicant seeks eviction of the Respondent from the suit property. Such relief presupposes that the Respondent is in occupation of the land. Having pleaded occupation as the basis for seeking eviction, the Applicant now invites the Court to order a survey to establish whether the Respondent is in occupation. Parties are bound by their pleadings and cannot be permitted to advance inconsistent factual positions through interlocutory applications.
Further, a survey report can only establish the physical status of the land as at the date of inspection. It cannot determine the legal ingredients necessary to establish or defeat a claim of adverse possession, namely whether possession has been open, exclusive, peaceful, continuous and adverse to the registered proprietor for at least twelve years. Those are matters to be determined after evaluating the evidence presented during the trial.
The Applicant has not demonstrated any exceptional circumstance warranting departure from the ordinary procedure of proving disputed facts through oral and documentary evidence. Granting the orders sought would in the circumstances amount to the Court facilitating the gathering of evidence for one party, contrary to the adversarial nature of civil proceedings and the principle embodied under Section 107 of the Evidence Act.
Accordingly, I find that the Notice of Motion dated 30th March 2026 is devoid of merit.
The same is hereby dismissed with costs to the Defendant/Respondent.
It is so ordered.
DATED, SIGNED AND DELIVERED AT EMBU THIS 09TH DAY OF JULY, 2026.
.................................................
HON. E.C CHERONO
ELC JUDGE, EMBU
In the presence of;
1. Mr. Kamunda for the Plaintiff/Applicant
2. Defendant/Respondent/Advocate-absent
3. Ruth – Court Assistant
| ELC 83 OF 2016 6 | Page |