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ELCAllowedNot stated in the ruling (arising from Nairobi Chief Magistrate Civil Case No. 8341 of 2007)· [2020] KEELC 386 (KLR)

Michael Sergon v Joseph K Kigen & 5 others [2020] KEELC 386 (KLR)

Environment and Land Court
12 November 2020
831 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court allowed a defendant to add late documents to a 13-year-old land case because the other side already knew about them.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Nairobi (E. O. Obaga, J) on a Notice of Motion dated 6th December 2019 by the 1st Defendant/Applicant seeking leave to rely on additional documents annexed to the application and leave to call a document examiner. The Applicant contended the documents were not new, most having been annexed to interlocutory applications in this matter and in Nairobi Chief Magistrate Civil Case No. 8341 of 2007, and that no prejudice would be suffered as the Respondent was yet to conclude his evidence. The Plaintiff/Respondent opposed through grounds of opposition filed on 24th January 2020, arguing the late filing amounted to shifting goalposts, a departure from the defence, and an ambush, the documents being introduced 13 years after the case was filed and some differing from those already filed. The court framed a single issue: whether the additional documents should be allowed, the prayer for an expert witness being unopposed. Examining the documents, the court found most were extracted from pleadings already on record and the rest were correspondence between the parties' advocates, so they could not be an ambush. The Respondent had been stood down upon discovery that the wrong documents (including an undated, unstamped sale agreement) had been filed. Objections about unsigned documents were held to be issues of admissibility or weight, not for that stage, applying Attorney General v Torino. Applying the Supreme Court's principles in Mohamed Abdi Mohamud on relevance, the interest of justice, bearing on the main issue, and proportionality and prejudice, the court found the application well merited and allowed it as prayed.

Key legal issues

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01

Whether the 1st Defendant should be granted leave to file additional documents

Holding

Yes. The documents were not new to the Respondent, having been extracted from pleadings filed in this case and in the lower court, and the Respondent was yet to be cross-examined, so no prejudice would be suffered.

Reasoning

The court examined the documents sought to be admitted and found most had been extracted from pleadings filed in this case and in Nairobi Chief Magistrate Civil Case No. 8341 of 2007, with the rest being correspondence between the parties' advocates. They could not therefore be an ambush or shifting of goalposts. The Respondent had been stood down before concluding cross-examination precisely because the wrong documents had been filed, and the applicant explained the inadvertent omission. The court applied the Mohamed Abdi Mohamud principles on relevance, interest of justice, bearing on the main issue, and proportionality and prejudice, and found the application merited.

p. 1
02

Whether objections that some documents are unsigned or otherwise irregular defeat the application

Holding

No. Such objections go to admissibility or the weight to be attached to the documents and should not be raised at this stage.

Reasoning

The Respondent argued that some documents being introduced differed from those already filed and were doubtful, some being unsigned. The court held that these were matters of admissibility or weight, properly raised later, and relied on Attorney General v Torino (2020) eKLR where a similar admissibility objection was deferred for consideration at the substantive hearing of the appeal.

p. 2

Legal principles established

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  • In considering whether to allow an application for leave to file additional documents, the court should consider the prejudice the introduction of the documents will cause to the other party.
  • Objections to signature or regularity of documents go to admissibility or weight and should not be raised at an interlocutory stage of leave to file additional documents.

Court orders

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  1. 1.Leave granted to the 1st Defendant/Applicant to file and rely on the additional documents as prayed
  2. 2.Leave granted for the Applicant to call a document examiner (unopposed)

Authorities

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Cases cited (1)

  • Mohamed Abdi Mohamud Vs Ahmed Abdullahi Mohamed & 3 Others (2018) e KLR
    (2018) eKLR
Jurisdiction invoked
Inherent powers of the court to regulate its proceedings and grant leave for additional documents (not expressly cited in the ruling)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Michael Sergon v Joseph K Kigen & 5 others [2020] KEELC 386 (KLR)", Case Analysis (2020). Not stated in the ruling (arising from Nairobi Chief Magistrate Civil Case No. 8341 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/386/eng@2020-11-12

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