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ELCDismissedNot stated in judgment (Kajiado ELC suit)· [2020] KEELC 512 (KLR)

Reuben Njaro Balosi v Sera Mweru Kangari & 2 others [2020] KEELC 512 (KLR)

Environment and Land Court
26 November 2020
COChristine Ochieng
1,658 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to order a forensic document check because the plaintiff waited too long, teaching that you must prepare your evidence early.

What this practically means

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Executive summary

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The Plaintiff, who claims to be the registered proprietor of parcel KIMANA/TIKONDO/181, brought a Notice of Motion dated 28th January 2020 under sections 1, 1A, 3 and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, seeking orders that the 2nd Defendant surrender the original transfer form dated 27th October 1972 to a document examiner and that he supply specimen signatures. He denied executing the transfer to one Mumira Kamau, which emerged from the District Land Registrar's report of 3rd October 2019, and relied on Rose Kaiza v Angelo Mpanju Kaiza. The 1st Defendant, Serah Mweru Kangari, opposed, asserting she and her late husband have held a title since 1981 and have possessed the land for over 35 years. She argued the application was a belated, disguised attempt to reopen the Plaintiff's closed case, citing Benjoh Amalgamated, the Salat decision, KN v JMT and the Mutinda Mule case. The court noted the Plaintiff had closed his case on 6th May 2019 after testifying and producing the Green Card, had never signalled an intention to use a document examiner, and had not explained his inaction since 1973. Holding that a litigant must prepare his own case and that the motion was a fishing expedition and abuse of process, the court dismissed the application with costs to the Defendants on 26th November 2020.

Key legal issues

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01

Whether the Plaintiff was entitled to forensic document examination orders after both parties had closed their cases

Holding

No - the application was misconceived, an abuse of process and a disguised attempt to reopen the Plaintiff's case

Reasoning

The Plaintiff testified, produced the Green Card, called witnesses and closed his case on 6th May 2019; the Defendants closed on 3rd October 2019. The Plaintiff never indicated an intention to subject documents to a document examiner, made no application to reopen his case, and gave no explanation for not seeking such examination since 1973. The court held the application was a fishing expedition designed to fill gaps in a closed case, contrary to the adversarial nature of litigation.

p. 2

Legal principles established

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  • It is a party's responsibility to prepare and gather evidence for its own case; neither the court nor the opposing party is obliged to assist, and a post-closing forensic examination application without one to reopen the case is an abuse of process

Court orders

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  1. 1.The Notice of Motion application dated 28th January, 2020 is dismissed
  2. 2.Costs of the application awarded to the Defendants

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 3, 3A
  • Civil Procedure RulesOrder 51 Rule 1; Order 11
  • Constitution of KenyaArticle 50(1)

Cases cited (5)

  • Rose Kaiza V Angelo Mpanju Kaiza
    (2009) eKLR
  • Benjoh Amalgamated Limited & Another V Kenya Commercial Bank Limited
    (2014) eKLR
  • Nicholas Kiptoo Arap Korir Salat V Independent Electoral and Boundaries Commission & 6 others
    (2013) eKLR
  • KN Vs JMT
    (2018) eKLR
  • Independent Electoral and Boundaries Commission & Another V Stephen Mutinda Mule & 3 Others
    (2014) eKLR
Jurisdiction invoked
Sections 1, 1A, 3 and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules

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, "Reuben Njaro Balosi v Sera Mweru Kangari & 2 others [2020] KEELC 512 (KLR)", Case Analysis (2020). Not stated in judgment (Kajiado ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/512/eng@2020-11-26

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