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ELCDismissedNot stated in the judgment (Environment and Land Court suit instituted 30th August 2012)· [2020] KEELC 1582 (KLR)

Elbi Homes Limited v Lenzi Laura & 2 other [2020] KEELC 1582 (KLR)

Environment and Land Court
24 July 2020
1,098 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 a defendant's late attempt to add documents at trial because they offered no credible explanation for the delay.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (J.O. Olola, J) determines a Notice of Motion dated 5th February 2019 by which the 2nd Defendant sought leave to file an additional list and bundle of documents after the trial had commenced and a Plaintiff's witness (the Plaintiff's director) had already testified. The application, supported by an affidavit of the Defendant's Advocate Martin D. Tebino, was premised on grounds that the documents - survey maps and management contracts with Pierre Loporte Ltd - had only recently come into the Defendants' possession and would assist the Court without prejudice to the Plaintiff. The Plaintiff opposed, asserting the documents had existed since before the suit was filed in 2012, that the claim of recent possession was false, and that its director had testified without an opportunity to consider them. The Court applied Order 7 Rule 5 of the Civil Procedure Rules and the Supreme Court's principles in Nicholas Kiptoo Korir Arap Salat v IEBC, holding that extension of time is an equitable remedy, not a right, requiring a satisfactory explanation for delay. Finding that the supporting affidavit gave no explanation of when or how the documents were obtained, and that the Plaintiff would be prejudiced by their late introduction, the Court dismissed the motion with costs on 24th July 2020.

Key legal issues

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01

Exercise of the Court's discretion to grant leave to introduce additional documents after trial has commenced

Holding

The discretion is wide but must be exercised judiciously; the applicant treated it as a right and failed to explain the delay, so leave was refused

Reasoning

The Court adopted the Supreme Court's Salat principles: extension of time is not a right but an equitable remedy requiring a satisfactory explanation for delay. The supporting affidavit by Advocate Martin D. Tebino did not disclose when or how the documents were obtained, so the Court could not consider the reason for delay. Pre-trial discovery under Order 7 Rule 5 is meant to be done at the pre-trial stage, and the Plaintiff's director had already testified without an opportunity to respond to the documents, occasioning prejudice.

p. 2
02

Prejudice to the opposing party from late introduction of documents

Holding

Prejudice was established because the Plaintiff's director had already testified and could not respond to the new documents

Reasoning

The Court found that the Plaintiff's director had given evidence without the benefit of considering the documents the 2nd Defendant sought to introduce. Admitting them would deny the Plaintiff a fair opportunity to respond, so prejudice weighed against granting the application.

p. 2

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party and the applicant bears the burden of explaining the delay to the satisfaction of the Court

Court orders

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  1. 1.The Motion dated 5th February 2019 is dismissed
  2. 2.Costs of the application awarded to the Plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 7 Rule 5

Cases cited (1)

  • Nicholas Kiptoo Korir Arap Salat –vs- Independent Electoral & Boundaries Commission & 7 others
    (2014) eKLR
Jurisdiction invoked
Civil Procedure Rules, Order 7 Rule 5 (leave of the Court to furnish statements/documents)

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, "Elbi Homes Limited v Lenzi Laura & 2 other [2020] KEELC 1582 (KLR)", Case Analysis (2020). Not stated in the judgment (Environment and Land Court suit instituted 30th August 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1582/eng@2020-07-24

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