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ELCAllowedNot stated in judgment· [2018] KEELC 2322 (KLR)

Anthony Kamau Njeri (Suing as the Administrator of the Este of the late Mary Gathoni Kanyingi v Eunice Muthobni Kahenia [2018] KEELC 2322 (KLR)

Environment and Land Court
10 July 2018
MSMUNYAO SILA
1,654 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a defendant to add new evidence mid-trial because the plaintiff's case wasn't closed, but made the defendant pay costs.

What this practically means

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Executive summary

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In a part-heard land suit at Nakuru, the plaintiff, claiming as beneficiary and legal representative of Nakuru Municipality Block 21/309, sued for eviction of the defendant and a permanent injunction, alleging encroachment and construction of semi-permanent structures. The defendant, registered owner of the adjoining parcel 21/307, filed a defence and counterclaim asserting that the physical occupation of the two parcels is the reverse of the register, and sought surrender of the ground to parcel 307, eviction from it, and an injunction. After the plaintiff testified and was cross-examined on 10 May 2018, it emerged that the defendant had filed a further list of witnesses and documents without leave of court. The defendant applied for leave to rely on that evidence, which comprised five additional witnesses, including the District Land Registrar, and documents intended to show that the deceased had sold parcel 309 to Samuel Ogero Marori and that the plaintiff is not a child of the deceased. The court, Munyao Sila J, reasoned that although Order 3 rule 2 and Order 7 rule 5 contemplate early disclosure of witnesses and documents, courts have leeway to permit additional evidence after trial commences, depending on circumstances, and such leave is neither automatic nor to be lightly invoked, becoming more difficult as the trial progresses. Because the plaintiff had not closed his case, the court held that any prejudice could be cured by allowing the plaintiff to recall himself, call more witnesses, or rely on additional evidence before the defence opens its case. The application was allowed, with costs of the application to the plaintiff.

Key legal issues

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01

Whether additional evidence may be adduced after commencement of trial without leave having been obtained earlier

Holding

Leave granted because the plaintiff had not closed his case and any prejudice could be cured by recall or further evidence

Reasoning

Order 3 rule 2 and Order 7 rule 5 require lists of witnesses and documents to accompany pleadings, so documentary and witness evidence should be settled early. However, courts have leeway to allow additional evidence after trial commences, depending on the circumstances. The defendant's evidence goes to whether the deceased sold the suit land. Since the plaintiff had not closed his case, prejudice could be cured by allowing him to rebut or adduce further evidence, making allowance the just order.

p. 2

Legal principles established

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  • Leave to adduce additional evidence after trial has commenced is discretionary, case-specific, not automatic, and harder to obtain where the trial has gone far
  • Prejudice from late additional evidence can be cured by allowing the opposing party to rebut or adduce further evidence

Court orders

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  1. 1.The defendant is allowed to rely on the additional evidence comprised in the further list of documents and further list of witnesses filed on 11 June 2018
  2. 2.The plaintiff will have the costs of the proceedings relating to this application
  3. 3.Leave open to the plaintiff to present additional evidence or call more witnesses before the defence case commences

Authorities

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Legislation

  • Civil Procedure RulesOrder 3 rule 2
  • Civil Procedure RulesOrder 7 rule 5
  • Civil Procedure RulesOrder 4 rule 1(2)
  • Civil Procedure RulesOrder 11

Cases cited (1)

  • Marclus Kiranga Nimrod & Another vs Nessy Kuthii Justus & Another
    Kerugoya ELC Case No. 737 of 2013
Jurisdiction invoked
Environment and Land Court Act (first-instance land dispute; specific provision not cited in judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Anthony Kamau Njeri (Suing as the Administrator of the Este of the late Mary Gathoni Kanyingi v Eunice Muthobni Kahenia [2018] KEELC 2322 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2322/eng@2018-07-10

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