Lornah Jebiwott Kiplagat v Esther Cheruiyot & 5 others [2019] KEELC 4296 (KLR)

Environment and Land Court

5 March 2019

AOA. Ombwayo

809 words in judgment

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The bottom line

A Kenyan court refused to let late evidence into a 2005 land case, warning that unexplained delays and prejudice to the other side will sink such applications.

What this practically means

Executive summary

This Environment and Land Court decision at Eldoret, delivered by A. Ombwayo J on 5 March 2019, determined an application by the Honourable Attorney General seeking leave to file and serve a supplementary list of documents, have them deemed duly filed and served, and to have respondents at liberty to recall witnesses. The application was supported by an affidavit of Sarah Chelimo Maina, County Land Registrar, Uasin Gishu, who procured the correspondence file for the suit land and an excerpt of the presentation book confirming genuine transactions. The plaintiff opposed, arguing no reason was given for the late filing in a suit filed in 2005, and that all parties had closed their cases, making introduction of new evidence prejudicial. The 1st to 3rd defendants did not oppose. The court held that allowing the application would infringe Article 159 of the Constitution by causing serious delay in a 19-year-old dispute, and would require amendment of pleadings and a hearing de novo. Applying the principles from Raila Odinga & 5 Others vs IEBC & 3 Others on admission of additional evidence, the court noted the applicant failed to explain why the documents could not have been filed earlier, particularly as Order 7 Rule 5 of the Civil Procedure Rules, 2010 and Justice Mshilla's directions of 23.11.2011 required documents to be filed by 7.03.2012, and no leave had been sought before hearing commenced on 22.7.2013. The court found the introduction of new documents would fundamentally alter the trial and substantially prejudice the plaintiff, whose case was closed, and dismissed the application with costs.

Key legal issues

Whether the court's discretion under Article 159 favours admission of late-filed documents after parties have closed their cases

Holding

No; the discretion must weigh justice on both sides and delay and prejudice weigh against allowing late introduction of documents

Reasoning

The court held that allowing the application would infringe Article 159 because the suit, filed in 2005, would be delayed further. Allowing new documents at the close of the plaintiff's case would require amendment of pleadings and a hearing de novo, fundamentally altering the trial and substantially prejudicing the plaintiff. The applicant had also failed to explain the hardship preventing timely filing.

p. 1

Compliance with directions to file documents before hearing

Holding

The defendants were required to file documents by 7.03.2012 under Order 7 Rule 5 of the Civil Procedure Rules and never sought leave before hearing commenced

Reasoning

Justice Mshilla had directed on 23.11.2011 that documents be filed within three months, i.e. by 7.03.2012. The applicant gave no explanation for failing to file before the viva voce hearing commenced on 22.7.2013, and never sought leave before hearing began, making the late application unjustified.

p. 2

Legal principles established

Where new material is so substantial that the other party cannot respond effectively, the court must act with abundant caution in granting leave to admit additional evidence

Court orders

1.The application for leave to file and serve supplementary list of documents and to recall witnesses is dismissed
2.Costs of the application awarded to the plaintiff

Authorities

Legislation

Constitution of Kenya, 2010Article 159
Civil Procedure Rules, 2010Order 7, Rule 5

Cases cited (1)

Raila Odinga & 5 Others vs IEBC & 3 Others
SCK Presidential Petitions Nos. 3, 4 and 5 of 2013 [2013] eKLR

Jurisdiction invoked: Article 159 of the Constitution of Kenya 2010

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Lornah Jebiwott Kiplagat v Esther Cheruiyot & 5 others [2019] KEELC 4296 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4296/eng@2019-03-05

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