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ELCOtherMombasa HCCC (suit commenced by plaint filed 11th July 2012; number not stated in extract)· [2018] KEELC 1434 (KLR)

Aniket Property & Investments Limited v Hamadi Juma Mwakibibo & 7 others [2018] KEELC 1434 (KLR)

High Court of Kenya
9 October 2018
CYC. Yano
1,620 words in judgment
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The bottom line

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Kenya's High Court allowed a litigant to introduce a forgotten document at trial because the other side could test it through cross-examination and be compensated with costs.

What this practically means

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Executive summary

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This interlocutory ruling by C. Yano, J of the High Court at Mombasa, delivered on 9th October 2018, determines an objection to the production of documents at trial in a land suit commenced by plaint on 11th July 2012 concerning Kwale/Diani Beach Block/203. During the evidence-in-chief of PW1, Vijay Lakhani, the plaintiff sought to introduce documents not listed in the original list of documents filed on 11th July 2012 or in the supplementary list filed on 19th September 2018, notably a stamp duty declaration form dated 27th February 2009. All defendants' counsel objected, arguing the documents were being produced from the bar, would amount to trial by ambush, and would prejudice parties who had pleaded and prepared defences without reference to stamp duty. Plaintiff's counsel, Mr Khagram, relying on Section 22 of the Civil Procedure Act and three authorities, submitted the court has power to admit documents at any time and any prejudice could be compensated by costs. The court applied Moses Warui Gatimu and Article 159(2)(d) of the Constitution, holding that although the documents were new evidence introduced without explanation, the trial was still at an early stage, PW1 had not completed testifying, and the defendants could cross-examine on the documents; admission would not render them conclusive proof. The court overruled the objection, allowed production of the stamp duty declaration form, directed the plaintiff to file and serve it forthwith before PW1 continued, and awarded the defendants costs of the objection.

Key legal issues

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01

Late introduction of documentary evidence not listed at pre-trial

Holding

The objection was overruled and the plaintiff allowed to adduce the additional documentary evidence, guided by Article 159(2)(d) of the Constitution.

Reasoning

The documents were new evidence not in the original or supplementary lists, and no reason was given for their omission. However, the trial was still ongoing and PW1 had not finished testifying. The court found no prejudice would result since the defendants could cross-examine on the documents, and admission does not mean the documents will be taken as gospel truth. Costs could compensate any prejudice.

p. 2
02

Fair hearing versus trial by ambush

Holding

Allowing the documents does not offend Article 50(1) because the defendants retain the opportunity to test them in cross-examination.

Reasoning

Counsel for the defendants argued that producing documents from the bar amounted to ambush and a miscarriage of justice. The court, adopting the reasoning in Moses Warui Gatimu, held that a fair hearing is preserved where the opposing party can adequately rebut new evidence; here cross-examination remained available and the documents would not automatically be accepted as proof.

p. 2

Legal principles established

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  • A litigant should not be barred from laying all his documents before the court where no prejudice is caused to the other side, which can be compensated by costs and tested in cross-examination.

Court orders

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  1. 1.Objection to production of the documents overruled
  2. 2.Discovery and production of the stamp duty declaration form dated 27th February 2009 allowed
  3. 3.Plaintiff directed to file and serve the defendants with the said document forthwith, and in any event before PW1 proceeds with his evidence
  4. 4.Defendants awarded costs of the objection

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 50(1)
  • Civil Procedure ActSection 22
  • Civil Procedure RulesOrder II; Order 3 Rule 1; Order 7 Rule 5

Cases cited (3)

  • Paul Kingoo Kioko –v- Afro Train (Tz) Ltd & Another
    (2008) eKLR
  • George Maina Michael –v- Vitalis Kabita
    (2018) eKLR
  • Moses Warui Gatimu –v- Douglas Mwai Machuru & Another
    (2018) eKLR
Jurisdiction invoked
Articles 50(1) and 159(2)(d) of the Constitution; Sections 22 of the Civil Procedure Act and Orders 2, 3 Rule 1 and 7 Rule 5 of the Civil Procedure Rules

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, "Aniket Property & Investments Limited v Hamadi Juma Mwakibibo & 7 others [2018] KEELC 1434 (KLR)", Case Analysis (2018). Mombasa HCCC (suit commenced by plaint filed 11th July 2012; number not stated in extract). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1434/eng@2018-10-09

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