REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT BUSIA
ELC CASE NO 3 OF 2021 (O.S)
GEORGE IRUKAN JUDGE ………………...……………… APPLICANT
= VERSUS =
AGGREY WANYONYI NABUTOLA …………………… RESPONDENT
R U L I N G
1. Before this Honourable Court for determination is the Notice of Motion dated 5.3.2026, brought under Section 3(a) of the Civil Procedure Act and under Order 51 Rule 1 of the Civil Procedure Rules, 2010, in which the Applicant is seeking the following orders:
a) That the County Surveyor, Busia, do visit L.R NO. SOUTH TESO/ANGOROMO/6460 upon issuing and serving notice to the Defendant, determine the actual size that is in occupation and use by the Plaintiff and prepare and file a report thereof in Court.
b) That the Plaintiff do meet the cost of the survey exercise.
c) That costs of the Application be in the cause.
2. The application is supported by the affidavit of George Irukan Judge and sworn on the even date.
THE APPLICANT’S CASE:
3. The applicant avers that the respondent sued him vide Busia CM ELC NO. 80 of 2020, seeking orders of permanent injunction restraining him from trespassing, building, cultivating and/or tiling the suit property and that the said suit was filed together with the notice of motion dated 15.12.2020. He filed the instant suit since he wanted to rely on adverse possession as his defence.
4. That the fact of possession is not in dispute, as the respondent acknowledged the fact of possession and that the only issue in dispute is the actual size, of which he has been in occupation since 10.12.1998.
5. That the portion is clearly demarcated on the ground with clear boundaries and that he is desirous that the same be ascertained by the county surveyor and that the report be filed before his case is closed.
6. The applicant filed its submissions dated 25.5.2026, in which they submit that their application satisfies the principles for allowing the filing of new evidence and that the report by the county surveyor will remove vagueness or doubt over the exact acreage that is in occupation and use by the Plaintiff.
7. The Plaintiff further submits that the planting of boundaries was done without the involvement of a surveyor and that the portion occupied by the Plaintiff could be one acre or more or less. And that the application is not meant to fill up omissions or patch up the weak points in their case.
8. They further submit that ascertainment of the exact size of the portion in occupation by the Plaintiff will go a long way in assisting the Court to arrive at a decision that meets the ends of justice.
THE RESPONDENT'S CASE:
9. The Respondent filed a replying affidavit sworn by Aggrey Wanyonyi Nabutola and dated 20.4.2026, in opposition to the application. He averred that the application is frivolous, vexatious and scandalous. The said application is bad in law and should not see the light of day.
10. He avers that he filed an ELC case at the subordinate Court at Busia vide CMC ELC NO. 80 of 2020 seeking injunctive orders. The respondent in that case filed only a replying affidavit opposing the application in which he was seeking temporary orders.
11. That before the determination of his application dated 1.12.2020, came to this Court and filed the present Originating Summons seeking for orders of adverse possession. The two files were consolidated and directions on disposal were given.
12. The applicant took the stand on 26.2.2026 where he testified as PW1 and his other witness as PW2.
13. That immediately after the testimony of PW2, Counsel for the Applicant made an oral application to the effect that a county surveyor visits the suit property to confirm the acreage occupied by the applicant and if there are any features of the boundary. The said oral application was opposed by his counsel on record, and the Court ruled and directed that the applicant to file a formal application and give reasons as to why the surveyor should visit the suit land.
14. He averred that the Court should be free, fair and impartial while handling a matter before it and should remain as a referee and not as a party to the suit. Allowing the application would mean that the applicant is using the Court to fish for evidence.
15. The pleadings have been closed, and no evidence should be filed by any other party and doing so would amount to an abuse of the Court process.
16. Counsel for the respondent filed their written submissions dated 28.5.2026, in which they raised two (2) issues for determination: (i) whether the pleadings had closed in this case and (ii) whether the Court is allowed in law to help a party fish out evidence.
17. On the first issue, counsel for the respondent stated that the Plaintiff has a duty to present all evidence to the Court before the start of the case, and it is not allowed in law for the Plaintiff to amend evidence through the county surveyor. And that since the pleadings have closed, the surveyor is not supposed to visit the suit property.
18. On the second issue, counsel submitted that the Court should remain impartial, and the duty of the Court is to take evidence as presented before it. And the Court should not be used to help a party get new evidence. He urged the Court to dismiss the application with costs.
ANALYSIS AND DETERMINATION:
19. Having considered the Application, the respective affidavits and the rival submissions, the only issue that arises for determination is whether the application dated 5.3.2026 is merited.
20. The Plaintiff seeks orders that the County Surveyor, Busia, do visit L.R NO. SOUTH TESO/ANGOROMO/6460, upon issuing and serving the Defendant, determine the actual size that is in occupation and use by the Plaintiff and prepare and file a report thereof in Court.
21. That I have carefully perused the Originating Summons dated 4.2.2021, and note that the Applicant's claim is expressly for one (1) acre to be excised from L.R. No. SOUTH TESO/ANGOROMO/6460. It is a settled principle of law that parties are bound by their pleadings. Consequently, even if the Court were to allow the prayer for a surveyor's visit and report, such report would neither alter nor enlarge the Applicant's pleaded claim, which remains confined to one (1) acre of the suit property.
22. In the case of Independent Electoral and Boundaries Commission & another -v- Mule & 3 others [2014] KECA 890 (KLR) the Court of Appeal stated that:
“As the authorities do accord with our own way of thinking, we hold them to be representative of the proper legal position that parties are bound by their pleadings which in turn limits the issues upon which a trial Court may pronounce. The learned Judge, no matter how well- intentioned, went well beyond the grounds raised by the Petitioners and answered by the Respondents before her and thereby determined the Petition on the basis of matters not properly before her. To that extent, she committed a reversible error, and the Appeal succeeds on that score.”
23. That the role of the County Surveyor in proceedings of this nature ordinarily arises only after the Court has determined the rights of the parties. That’s after judgment has been rendered. Should the Applicant succeed in the claim for adverse possession, the Court may then direct the County Surveyor to visit the suit property for the limited purpose of identifying, demarcating, and excising the portion awarded in the judgment. At the present stage, before the Court has determined whether the Applicant has established the claim, such an order would be premature and unnecessary.
24. That I find the Applicant's request for the County Surveyor to visit the suit property at this stage of the proceedings to be premature and of no significant probative value to the issues presently before the Court. The proposed survey will not aid the Court in determining the size of the portion claimed by the Applicant, as the extent of the claim has already been expressly pleaded in the Originating Summons, wherein the Applicant seeks one (1) acre out of L.R. No. SOUTH TESO/ANGOROMO/6460. Parties are bound by their pleadings, and a survey report cannot vary, enlarge, or redefine the acreage claimed. The exercise would therefore serve no useful purpose in the determination of the issues before the Court and would only become relevant, if at all, upon a finding in favour of the Applicant for purposes of identifying and excising the portion awarded. Consequently, I am not persuaded that granting the orders sought at this stage would serve the ends of justice or facilitate the fair and expeditious determination of the suit.
25. The Plaintiff submitted that the purpose of the survey is to ascertain the exact size of the portion in his occupation, which will go a long way to assist the Court in arriving at a decision that will meet the ends of justice.
26. It is incumbent upon the Plaintiff to prove, on a balance of probabilities, all the essential elements of the claim, including the identity and extent of the portion allegedly occupied. Where the claim relates to a portion of land, the burden rests with the Plaintiff to adduce sufficient evidence identifying that portion.
27. In the case of Ngetich & 9 others -v- Nyamongo & 14 others [2025] KEELC 7072 (KLR) the Court provided that:
“Primarily, the rules of evidence provide that the burden of proving the Plaintiffs’ case lies squarely on the Plaintiffs. Accordingly, if the Plaintiffs required a RIM to prove their case, they ought to have obtained one and filed it before the Court. In practice, one only needs to pay the requisite fees to obtain a copy of the RIM, therefore, the survey is not necessary to obtaining the said documents from the respective government offices.”
28. I have perused the Court record and it shows that pleadings closed long before the present application was filed and that PW1 and PW2 have already testified. No sufficient explanation has been offered as to why the Applicant did not seek the survey orders before the commencement of the hearing or before leading evidence. In the Court's view, the application has been brought belatedly and appears calculated to procure evidence to bolster the Plaintiff's case after the hearing has substantially progressed. Courts should not aid a party in filling evidentiary gaps that become apparent during trial.
29. In the above-mentioned case of Ngetich & 9 others -v- Nyamongo & 14 others [2025] KEELC 7072 (KLR) the Court provided that:
“This Court moves on the understanding that the Plaintiffs knew their case before instituting their claim. Therefore, with regards to the position and occupation of the suit property, the Plaintiffs must have had this information, which is the reason they formulated the suit in the manner they did, against the people who had allegedly encroached into their land, which is the Defendants herein. In any event, nothing stopped the Plaintiffs from conducting the survey/ground inspection prior to filing of the suit to ascertain the true position on the ground. No reasonable explanation has been given as to why this was not done at the time of filing the suit, or why the Plaintiffs have waited 10 years to decide that the survey is an integral component of their suit.”
30. In Kassam & 12 others -v- Shah & 16 others [2025] KEELC 3847 (KLR) the Court held that:
“The Petitioners, having voluntarily instituted the present proceedings and alleged various violations of their rights, including non-compliance with building regulations and planning laws, bear the legal obligation to substantiate these claims. This principle is firmly anchored in Sections 107 and 109 of the Evidence Act. Section 107 provides thus: (1) 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. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
31. Similarly, Section 109 of the Evidence Act provides that the burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
32. This being an adversarial system, the Court is an impartial adjudicator. The Court cannot, for any reason, abandon its position as a neutral arbiter and turn itself into an investigator. Since it is the parties that are responsible for presenting their cases and evidence, there is no room for this Court to intervene or help either party to supplement and/or better its case. The role of the Court as a neutral arbiter is limited to determining the dispute based on the evidence and arguments presented by each party. A Court must not descend into the arena of disputes or assist one party over another by gathering evidence for them or helping them to do so.
33. In the circumstances, I agree with the Defendant that the orders the County Surveyor Busia, do visit the suit property and to determine the actual size that’s in occupation and use by the Plaintiff and thereafter to prepare and file a report in Court is not merited as discussed above.
34. The upshot is that the application dated 5.3.2026 is devoid of merit and the same is dismissed with costs to the Defendant.
Ruling dated, signed and delivered in open Court on this 13th day of July 2026.
C. MUGAMBI
JUDGE
13TH JULY 2026
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