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ELCPartially AllowedNot stated in the judgment· [2020] KEELC 1319 (KLR)

Nilesh Kumar Krishnakumar Lakhlani (Suing as a Legal Representative of the estate of Krishna Kumar Shivalal alias Krishnakumar Shivlal Lakhlani deceased) v Pravin Chandra Shivalal Lakhlani; Equity Bank Limited (Interested Party) [2020] KEELC 1319 (KLR)

Environment and Land Court
23 September 2020
LMLucy N. Mbugua
1,444 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 let a defendant add four forgotten documents mid-trial, but only because they were minor, known to the other side, and the delay was paid for with costs.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Meru, delivered by Hon. Lucy N. Mbugua, ELC Judge, on 23 September 2020, determined a Notice of Motion dated 14 January 2020 brought under Sections 3, 3A and 63(e) of the Civil Procedure Act and Articles 50(1) and 159(2)(d) of the Constitution. The applicant/defendant sought leave to file a supplementary list and bundle of documents and to recall witnesses. The applicant contended that additional documents obtained from Meru CM Succession Cause No. 146 of 2018 were crucial and that no prejudice would befall the plaintiff, who had custody of them. The respondent opposed, arguing the application was a belated afterthought: the applicant had been aware of the documents since before pre-trial directions, had earlier failed to comply with timelines, and had his documents expunged from the record on 8 July 2019. The court framed a single issue: whether to grant leave to file the supplementary bundle. It invoked Order 7 Rule 5 of the Civil Procedure Rules, the holding in Anne Mumbi Hinga v Gaitho Oil Limited that procedural rules are not cast in stone, and the Supreme Court's guidance in the Raila Odinga Presidential Petition on compliance with timelines and the caution required when admitting substantial new material. Although the court observed that the belated application was in essence an ambush, it held that additional evidence should be considered case by case. Finding the material (documents already produced in the succession cause) not substantial, and the respondent not rebutting awareness of them, the court allowed the application only in respect of the four documents cited in the application, permitted the respondent to give further evidence in chief touching on the new documents, and condemned the applicant/defendant to pay the costs of the application.

Key legal issues

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Whether to grant the applicant leave to file a supplementary list and bundle of documents

Holding

The application was allowed insofar as the four documents cited in the application are concerned, since the material is not substantial and the respondent has not rebutted awareness of the documents

Reasoning

The court noted the applicant had earlier abandoned a bundle of documents and was now seeking to introduce more after the plaintiff commenced testimony, which was an ambush. However, applying the case-to-case approach, the documents sought were already produced in the succession cause, were not substantial, and the respondent did not rebut awareness of them. Fairness could be preserved by allowing the respondent to give further evidence in chief touching on the new documents.

p. 2

Legal principles established

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  • The Civil Procedure Rules are not cast in stone; courts are enjoined to dispense substantive justice and have inherent power under section 3A of the Civil Procedure Act to make orders necessary for the ends of justice
  • In exercising discretion to admit additional evidence, the court considers the nature, context and extent of the new material; limited material to which the other party can respond warrants a considerate approach
  • Whether to allow additional evidence is considered on a case to case basis

Court orders

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  1. 1.The applicant is allowed to introduce ONLY the four documents cited in his application dated 14.1.2020
  2. 2.The respondent is at liberty to give further evidence in chief which touches on the new documents
  3. 3.The applicant/defendant is condemned to pay costs of this application

Authorities

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Legislation

  • Civil Procedure ActSections 3, 3A, 63(e), 1A, 1B
  • Constitution of Kenya 2010Articles 50(1), 159(2)(d), 159
  • Civil Procedure RulesOrder 7 Rule 5; Order 21 Rule 1

Cases cited (6)

  • Desphal Omprakash v Habib Ali Mohammed & 4 others
    [2018] eKLR
  • Johana Kipkemei Too v Hellen Tum
    [2014] eKLR
  • Japhet Kirimi & 3 others v Rosemaru Karoki Rutere & another
    [2018] eKLR
  • Lornah Jebiwott Kiplagat v Esther Cheruiyot 5 others
    [2019] eKLR
  • Raila Odinga & 5 Others vs. IEBC & 3 Others
    SCOK Presidential Petition no's 3, 4 and 5 of 2013 (2013)
  • Anne Mumbi Hinga v Gaitho Oil Limited
    [2013] eKLR
Jurisdiction invoked
Sections 3, 3A & 63(e) of the Civil Procedure Act and Articles 50(1) and 159(2)(d) of the Constitution of Kenya 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, "Nilesh Kumar Krishnakumar Lakhlani (Suing as a Legal Representative of the estate of Krishna Kumar Shivalal alias Krishnakumar Shivlal Lakhlani deceased) v Pravin Chandra Shivalal Lakhlani; Equity Bank Limited (Interested Party) [2020] KEELC 1319 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1319/eng@2020-09-23

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