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ELCPartially AllowedNotice of Motion dated 17th July 2017· [2017] KEELC 802 (KLR)

Joseph Ndungu Kamau v John Njihia [2017] KEELC 802 (KLR)

High Court of Kenya
16 November 2017
1,621 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court allowed a closed case to be reopened for specific missing succession documents, showing courts will help litigants retrieve evidence lost through no fault of their own.

What this practically means

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Executive summary

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This ruling by the High Court at Nakuru (Ohungo J) determined a Notice of Motion dated 17th July 2017 in which the plaintiff sought to reopen his case after both parties' cases had been heard and closed and after the court had directed the filing of written submissions. The plaintiff sought leave to produce the original court file in Eldoret High Court Succession Cause Number 39 of 1988 (the estate of Maria Nyambura Ndungu) and an order directing the officer in charge of the Eldoret Succession Registry to forward the file. He explained that he had made almost five attempts to retrieve the aged file and had closed his case only when it appeared it could not be located; it had since been found. The defendant opposed, arguing that the plaintiff had not disclosed what new evidence he intended to prove and that once a case was closed, only the court could call further evidence. The court applied the principles in Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd, drawing on Simba Telecom v Karuhanga and Smith v New South Wales, holding that the discretion to reopen must be exercised judiciously, must not prejudice the opposite party, and will be refused where the failure was deliberate, the delay inordinate, or the purpose merely to fill gaps in evidence. Accepting that the plaintiff's failure was not deliberate and that no prejudice was suggested, the court allowed limited reopening. It refused an open-ended order and declined to direct that the entire file be forwarded, confining the plaintiff to producing the final judgment or order and final certificate of confirmation of grant through a registry officer, and reopening the defence case strictly to respond. Costs were in the cause.

Key legal issues

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01

Whether reopening of a closed case should be permitted

Holding

Reopening allowed on conditions because the plaintiff's failure to produce the evidence was not deliberate; the file had been unavailable and was later located

Reasoning

The court noted that the plaintiff had sought an adjournment to produce the Eldoret Succession file and had made almost five attempts to retrieve it. The court accepted his explanation that he closed his case only when the file could not be located. The evidence was not an afterthought and no prejudice was suggested by the defendant. The discretion was therefore exercised judiciously in favour of limited reopening.

p. 3
02

Whether the entire original court file should be summoned from the Eldoret registry

Holding

Refused; reopening limited to the final order/judgment and certificate of confirmation of grant, produced by a registry officer

Reasoning

The court held that an open-ended order would risk delaying proceedings and introducing issues disputed in the succession cause into this suit. Only the final order or judgment and the final certificate of confirmation of grant were relevant, to be produced by a registry officer whose attendance the plaintiff must procure through the normal procedure for calling witnesses.

p. 3
03

Whether the defence case should also be reopened

Holding

Yes, strictly limited to responding to the evidence produced by the plaintiff

Reasoning

Having allowed the plaintiff to adduce additional evidence after both cases were closed, fairness required giving the defendant an opportunity to respond to that evidence. The reopening of the defence case was confined to responding to the newly admitted documents.

p. 3

Legal principles established

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  • The court retains discretion to allow reopening of a case, to be exercised judiciously, ensuring no embarrassment or prejudice to the opposite party; reopening will not be allowed to fill gaps in evidence or where there is inordinate and unexplained delay
  • Where new or additional evidence is available, the court must enquire why it was not called at the hearing; a deliberate decision not to record it ordinarily tells decisively against the application

Court orders

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  1. 1.The plaintiff's case reopened strictly limited to production of the final order or judgment and final certificate of confirmation of grant (or certified copies) in Eldoret High Court Succession Cause Number 39 of 1988 (estate of Maria Nyambura Ndungu)
  2. 2.The documents to be produced by an officer from Eldoret High Court Succession or Probate registry, with the plaintiff procuring the witness's attendance through the usual procedure
  3. 3.The defence case similarly reopened strictly to responding to the evidence adduced under (a)
  4. 4.Costs in the cause

Authorities

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Cases cited (4)

  • Samuel Kiti Lewa v Housing Finance Co. Of Kenya Ltd & another
    [2015] eKLR
  • SIMBA TELECOM –V- KARUHANGA & ANOR
    (2014) UGHC 98
  • SMITH –VERSUS- NEW SOUTH WALES
    [1992] HCA 36; (1992) 176 CLR 256
  • Charles Antony Ondiek & 3 others –vs- Thomas Odhiambo Nyonje & 6 others
    HCC No. 63 of 2007 (Kitale)
Jurisdiction invoked
Inherent discretion of the High Court in civil proceedings

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Joseph Ndungu Kamau v John Njihia [2017] KEELC 802 (KLR)", Case Analysis (2017). Notice of Motion dated 17th July 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/802/eng@2017-11-16

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