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ELCDismissedEldoret E&L Case No 975 of 2012 (Consolidating Eldoret HCCC No 224 of 2011 and Eldoret HCCC No 44 of 2012)· [2014] KEELC 512 (KLR)

Too v Tum (Environment & Land Case 975 of 2012) [2014] KEELC 512 (KLR)

Environment and Land Court
27 January 2014
MSMunyao Sila
2,297 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to let a land defendant add surprise evidence late in trial, ruling that ambush tactics violate the constitutional right to a fair hearing.

What this practically means

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Executive summary

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This is an interlocutory ruling by the Environment and Land Court at Eldoret in a consolidated land dispute over parcel Nandi/Kilibwoni/1023, being heard as Eldoret E&L Case No 975 of 2012. The consolidation merged a suit by Hellen Tum seeking nullification of a fraudulent transfer of the land to Johana Too, and a suit by Johana Too claiming ownership and seeking Tum's eviction as a trespasser; Tum counterclaimed, asserting ownership through a Nandi woman-to-woman customary marriage to Tapkili Metto. After the plaintiffs testified and closed their case, and after the defendant had herself testified and been cross-examined, the defendant applied through Mr PK Birech for leave to call three additional witnesses (Andrea Rono, Nathan Tum and Kirwa arap Songol) and to introduce an engagement document dated 27 August 1987. Mr RM Wafula for the plaintiffs opposed, arguing ambush and prejudice. Justice Munyao Sila reviewed Orders 3, 7 and 11 of the Civil Procedure Rules, 2010, holding that evidence must be furnished with the pleadings to curb trials by ambush, and that a trial allowing ambush would offend Article 50(1) of the Constitution. However, the court retained a discretion, grounded in Article 159(2)(d), to admit additional evidence where no undue prejudice would be caused, considering factors such as the stage of the proceedings. On the facts, the defendant gave no reason for the delay, never mentioned the document in her testimony, and the plaintiffs, having closed their case, could not rebut the new evidence. The application was denied, and the defendant was directed to proceed on the evidence she had originally proposed to tender.

Key legal issues

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01

Whether witnesses and documents must be furnished with the pleadings

Holding

Order 3 rule 2 and Order 7 rule 5 of the Civil Procedure Rules require both plaintiff and defendant to furnish their evidence when filing their pleadings, with late filing possible only by leave at least 15 days before the pre-trial conference

Reasoning

The court examined Orders 3, 7 and 11 of the Civil Procedure Rules, 2010 and held that the provisions are meant to curb trials by ambush by making clear to the other party the nature of the evidence to be faced at trial. There is no provision permitting lists of witnesses or documents to be filed outside the timelines, though no express consequence of non-compliance is prescribed.

p. 5
02

Whether the court has discretion to allow additional evidence despite non-compliance

Holding

Yes - the court is not absolutely barred; it may permit additional evidence where it causes no undue prejudice, guided by Article 159(2)(d) and the mandate to do justice

Reasoning

The court drew on Article 159(2)(d) of the Constitution, holding that the court as a shrine of justice should not be too strictly bound by procedural technicalities. It identified relevant factors including the earlier availability of the witness, discovery of a new document and the stage of the proceedings, noting that prejudice increases as the trial progresses, and that each court must weigh the circumstances of each case.

p. 5
03

Whether the interests of justice warranted allowing the additional evidence in this case

Holding

No - the plaintiffs had closed their case, the document was never put to them in cross-examination, and the defendant sought to fundamentally alter the character of her case after her cross-examination, causing great prejudice

Reasoning

The defendant gave no reason for not furnishing the evidence earlier, never alluded to the engagement document in her own testimony, and only sought to introduce the new evidence after being cross-examined. The plaintiffs would have no opportunity to rebut the new evidence, and allowing the application would render the trial unfair and violate Article 50(1) of the Constitution.

p. 5

Legal principles established

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  • A court retains the power to disallow evidence not furnished to the other party as contemplated by the Civil Procedure Rules, since allowing a party to ambush the other would offend the right to a fair trial under Article 50(1)
  • Although there is no express provision permitting late filing of witness lists and documents, the court may in appropriate circumstances allow additional evidence where it can be adduced without undue prejudice, weighing factors such as the availability of the witness, discovery of a new document and the stage of the proceedings

Court orders

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  1. 1.The Defendant's application to avail three more witnesses and to introduce the engagement document is disallowed
  2. 2.The Defendant to proceed on the basis of the evidence she had proposed to tender when she filed her defence

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure Rules, 2010Order 3 rule 2
  • Civil Procedure Rules, 2010Order 3 rule 7
  • Civil Procedure Rules, 2010Order 7 rule 5
  • Civil Procedure Rules, 2010Order 11 rule 7

Cases cited (1)

  • Raila Odinga & 5 others v IEBC & 3 others
    Supreme Court of Kenya, Petitions Nos 3, 4 and 5 of 2013 (2013) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over the land parcel Nandi/Kilibwoni/1023

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Too v Tum (Environment & Land Case 975 of 2012) [2014] KEELC 512 (KLR)", Case Analysis (2014). Eldoret E&L Case No 975 of 2012 (Consolidating Eldoret HCCC No 224 of 2011 and Eldoret HCCC No 44 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/512/eng@2014-01-27

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