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RULING
1.Under the (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 commonly known as the Mutunga Rules, this court in exercise of its jurisdiction has a duty to facilitate the just expeditious, proportionate and affordable resolution of all cases. For the purpose of furthering the overriding objection, the court shall handle all matters presented before it and dispose proceedings timeously at a cost affordable by the respective parties.
2.A party to proceedings commenced under these rules, or an advocate for such a party, is under a duty to assist the court to further the overriding objective of these rules and in that regard, to participate in the processes of the court and comply with the directions of the court.
3.Under Rule 15(2) of the Mutunga rules, a respondent shall within 14 days of service of a petition, respond by way of a replying affidavit or statement setting out the grounds relied upon to oppose the petition.
4.Hearing of petitions, unless the court otherwise directs, is by way of affidavits, written submissions or oral evidence. If directions are taken that hearing shall proceed by oral evidence, parties are required to file affidavits and documents to be relied on by witnesses during trial.
5.Under Rule 21(2) of the Mutunga rules, a party who wishes to file further information at any stage of the proceedings may do so with leave of the court.
6.In the petition before the court, directions were taken that hearing would be by way of oral evidence. The petitioner filed affidavits, testified as PW1 and called an expert witness Ezra Kipsang, an Engineer to produce a valuation report.
7.The respondent filed three affidavits but informed the court that they intended to call eight witnesses. The respondent called Jackson Chepkwong, an employee of the County Government of Elgeyo Marakwet working in the department of roads, public works and transport as RW1 and Reuben Chesum the sub county surveyor. The respondent’s counsel referred to them as expert witnesses and that is the reason why they had not filed affidavits. The petitioner’s counsel objected to production of the report dated 3rd July, 2025 by any of these witnesses because they were not expert witnesses. He stated that the report was an opinion of the employees of the respondent who had participated in the site verification exercise of Kapcherop – Chep Kerengoi Road 2nd July, 2025 on orders from their employer.
8.Who is an expert witness?
An expert witness in anyone with knowledge or experience of a particular field or discipline beyond that to be expected of a layman. The expert witness’s duty is to give to the court an impartial opinion on particular aspects of matters within his/her expertise which are in dispute.
9.The witnesses referred to as expert witnesses by counsel for the respondents are not expert witnesses. They are employees of the respondent who undertook the verification exercise in that capacity. In my humble view, their opinion cannot be taken as impartial and their report cannot be said to be an independent report. To me, these are normal witnesses who ought to have filed affidavits like any other witness.
10.Having failed to file affidavits when they had the oppourtunity to do so, I decline to exercise my discretion to allow the application by the respondent to file affidavits and documents for the remaining four witnesses and to call an additional witness, William Kibiwott. The petitioner having closed his case, will not have the opportunity to respond any issue raised in the affidavits. I have noted that the report dated 3rd July, 2025 was not produced. Being one of the witnesses present during the verification exercise and having signed the report, I direct that RW4 be recalled to produce the report.
11.Regarding issuance of summons to the County Surveyor and Land Registrar, the petitioner having admitted in his amended petition that Land parcel No. 1300 is not captured in the RIM, I find it unnecessary to issue summons to the County Surveyor. However, I am of the view that the Land Registrar is a necessary witness as she will assist the court in arriving at a more informed decision. Under Rule 20(4) of the Mutunga rules, the court may on its own motion examine any witness or call and examine or recall any witness if it is of the opinion that the evidence is likely to assist the court arrive at a decision. Consequently, I issue summons to the Land Registrar Elgeyo Marakwet County to attend court on 11th December, 2025 to produce parcel file No. Cherangany /Kapcherop/1175.
Dated, signed and delivered this 11th day of November, 2025.
Ruling delivered virtually in the presence of;-
Ms. Kiptum for the Petitioner
Mr. Wafula for the Respondent
Court Asst.: Christine.
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RULING
1.Under the (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 commonly known as the Mutunga Rules, this court in exercise of its jurisdiction has a duty to facilitate the just expeditious, proportionate and affordable resolution of all cases. For the purpose of furthering the overriding objection, the court shall handle all matters presented before it and dispose proceedings timeously at a cost affordable by the respective parties.
2.A party to proceedings commenced under these rules, or an advocate for such a party, is under a duty to assist the court to further the overriding objective of these rules and in that regard, to participate in the processes of the court and comply with the directions of the court.
3.Under Rule 15(2) of the Mutunga rules, a respondent shall within 14 days of service of a petition, respond by way of a replying affidavit or statement setting out the grounds relied upon to oppose the petition.
4.Hearing of petitions, unless the court otherwise directs, is by way of affidavits, written submissions or oral evidence. If directions are taken that hearing shall proceed by oral evidence, parties are required to file affidavits and documents to be relied on by witnesses during trial.
5.Under Rule 21(2) of the Mutunga rules, a party who wishes to file further information at any stage of the proceedings may do so with leave of the court.
6.In the petition before the court, directions were taken that hearing would be by way of oral evidence. The petitioner filed affidavits, testified as PW1 and called an expert witness Ezra Kipsang, an Engineer to produce a valuation report.
7.The respondent filed three affidavits but informed the court that they intended to call eight witnesses. The respondent called Jackson Chepkwong, an employee of the County Government of Elgeyo Marakwet working in the department of roads, public works and transport as RW1 and Reuben Chesum the sub county surveyor. The respondent’s counsel referred to them as expert witnesses and that is the reason why they had not filed affidavits. The petitioner’s counsel objected to production of the report dated 3rd July, 2025 by any of these witnesses because they were not expert witnesses. He stated that the report was an opinion of the employees of the respondent who had participated in the site verification exercise of Kapcherop – Chep Kerengoi Road 2nd July, 2025 on orders from their employer.
8.Who is an expert witness?
An expert witness in anyone with knowledge or experience of a particular field or discipline beyond that to be expected of a layman. The expert witness’s duty is to give to the court an impartial opinion on particular aspects of matters within his/her expertise which are in dispute.
9.The witnesses referred to as expert witnesses by counsel for the respondents are not expert witnesses. They are employees of the respondent who undertook the verification exercise in that capacity. In my humble view, their opinion cannot be taken as impartial and their report cannot be said to be an independent report. To me, these are normal witnesses who ought to have filed affidavits like any other witness.
10.Having failed to file affidavits when they had the oppourtunity to do so, I decline to exercise my discretion to allow the application by the respondent to file affidavits and documents for the remaining four witnesses and to call an additional witness, William Kibiwott. The petitioner having closed his case, will not have the opportunity to respond any issue raised in the affidavits. I have noted that the report dated 3rd July, 2025 was not produced. Being one of the witnesses present during the verification exercise and having signed the report, I direct that RW4 be recalled to produce the report.
11.Regarding issuance of summons to the County Surveyor and Land Registrar, the petitioner having admitted in his amended petition that Land parcel No. 1300 is not captured in the RIM, I find it unnecessary to issue summons to the County Surveyor. However, I am of the view that the Land Registrar is a necessary witness as she will assist the court in arriving at a more informed decision. Under Rule 20(4) of the Mutunga rules, the court may on its own motion examine any witness or call and examine or recall any witness if it is of the opinion that the evidence is likely to assist the court arrive at a decision. Consequently, I issue summons to the Land Registrar Elgeyo Marakwet County to attend court on 11th December, 2025 to produce parcel file No. Cherangany /Kapcherop/1175.
Dated, signed and delivered this 11th day of November, 2025.
Ruling delivered virtually in the presence of;-
Ms. Kiptum for the Petitioner
Mr. Wafula for the Respondent
Court Asst.: Christine.
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