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ELCDismissedNot stated in the judgment· [2019] KEELC 1890 (KLR)

Michael Kiplangat Cheruiyot v Joseph Kipkoech Korir [2019] KEELC 1890 (KLR)

Environment and Land Court
18 July 2019
1,903 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to let a litigant add late evidence after closing his case, ruling it was always available and amounts to a fishing expedition.

What this practically means

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Executive summary

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The plaintiff applicant moved the Environment and Land Court at Nakuru by an application dated 19 June 2019 seeking to re-open his case and file a supplementary list of documents, supplementary witness statements and generally avail more witnesses and evidence. Both parties had closed their cases, final submissions had been filed, and the suit was awaiting judgment. The plaintiff sought to introduce documents obtained on 12 June 2019 from the District Land Registrar, including a letter stating there was no register for parcel Nakuru/Ngongongeri/1026, a note that the parcels were under a Government caveat, the register for parcel 1040, and a survey map said to show parcel 1026 does not exist. He contended the respondent fraudulently obtained title to parcel 1026. The respondent opposed, arguing the evidence had been available since 2015 and the application was aimed at defeating justice. The court held that re-opening a case is a discretion to be exercised with considerable restraint, since the Civil Procedure Rules require pre-trial disclosure of evidence under Order 3 Rule 2 and Order 7 Rule 5. The applicant had known the respondent's case at pre-trial and could have sought time to gather further evidence. The evidence was readily available throughout and its late introduction was an afterthought amounting to a fishing expedition. The court distinguished Joseph Ndungu Kamau vs John Njihia (2017) eKLR, where the exhibit had been misplaced. Holding that no exceptional or extraordinary circumstances were shown, the court dismissed the application with costs.

Key legal issues

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01

Whether a party may re-open its case and adduce additional evidence after both parties have closed their cases and submissions have been filed

Holding

No special circumstances were demonstrated; the application was dismissed with costs

Reasoning

The court held that while re-opening a case falls within the court's discretion, that discretion must be exercised with restraint because Order 3 Rule 2 and Order 7 Rule 5 of the Civil Procedure Rules require pre-trial disclosure of evidence. The applicant knew the respondent's case at pre-trial and could have sought time to gather additional evidence but did not. The documents obtained on 12 June 2019 were always available and could have been produced before the plaintiff closed his case. The evidence was an afterthought aimed at countering the respondent's closed case, amounting to a fishing expedition that would prolong hearings and negate pre-trial disclosure.

p. 2
02

Distinguishing Joseph Ndungu Kamau vs John Njihia (2017) eKLR

Holding

That case was distinguishable because the exhibit there had been intended for production and was merely misplaced, unlike the present evidence which was always available

Reasoning

Counsel for the applicant relied on Ohungo J's decision allowing additional evidence just before highlighting submissions. The court distinguished it: in that case the plaintiff had intended to produce a court file which could not be traced during trial, so the defendant was aware of the intention to rely on it. Here the 'new evidence' was never lost or traced late; it was always available and could have been presented before the plaintiff closed his case, so the authority did not assist the applicant.

p. 2

Legal principles established

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  • Re-opening of a case to adduce additional evidence is a discretionary power to be exercised with considerable restraint, requiring demonstration that the evidence could not have been obtained with due diligence before trial
  • A trial should not be used as a fishing ground for new evidence, as this negates the essence of pre-trial disclosure
  • Only exceptional and/or extraordinary circumstances justify departing from the Civil Procedure Rules on the conduct of trials

Court orders

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  1. 1.The application dated 19 June 2019 seeking to re-open the plaintiff's case and file supplementary documents, witnesses and statements is dismissed
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 18 (including Rule 10)
  • Civil Procedure Rules, 2010Order 3 Rule 2
  • Civil Procedure Rules, 2010Order 7 Rule 5
  • Civil Procedure ActGeneral structure of civil trials

Cases cited (1)

  • Joseph Ndungu Kamau vs John Njihia
    (2017) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a land dispute concerning parcels Nakuru/Ngongongeri/1040 and 1026; application brought under the Civil Procedure Act and Civil Procedure Rules, 2010

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, "Michael Kiplangat Cheruiyot v Joseph Kipkoech Korir [2019] KEELC 1890 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1890/eng@2019-07-18

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