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ELCPartially AllowedNotice of Motion dated 16th May 2019 (within the main suit)· [2020] KEELC 2090 (KLR)

Solomon Magana Kamiti v Moses Kweri Kinya & 6 others [2020] KEELC 2090 (KLR)

Environment and Land Court
17 June 2020
JOJ.O. Olola
1,419 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed a landowner to fix a filing mistake mid-trial, showing courts will accept late evidence when it is small and fair to both sides.

What this practically means

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Executive summary

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This is a ruling on the Plaintiff's Notice of Motion dated 16th May 2019 in a land suit before the Environment and Land Court at Malindi. The Plaintiff, Solomon Magana Kamiti, sued as father and administrator of the estate of David Gikonyo Kamiti, and sought to expunge a letter of consent dated 2/8/1995 issued to Nicodemus Kenga Kashuru by Maisha Mapya Self Help Group, which his counsel had erroneously attached from a separate file (Malindi CMCC No. 169 of 2009), and instead to recall PW1 to produce the correct letter of consent dated 19/6/1999 issued to the deceased, or alternatively to file a further list of documents. The 5th Defendant, Guni Bati Guni, opposed the application as an afterthought and ambush, arguing the court had no power to expunge a properly produced exhibit and that recalling the plaintiff would prejudice defendants who had already testified. Judge J.O. Olola framed the issue as when a party may be allowed to produce new evidence during trial, relying on Order 18 Rule 10 of the Civil Procedure Rules, Section 146(4) of the Evidence Act, and the Supreme Court's principles in Raila Odinga v IEBC. Finding the intended addition to be a single, limited document to which the defendants could effectively respond, the court allowed the application in terms of Prayers 2 and 3, with costs of the application awarded to the Defendants. Judgment was delivered on 17th June 2020.

Key legal issues

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01

Whether a party may produce new evidence late in the trial

Holding

Yes, where the new material is limited and the other party can respond effectively without significant burden, the court may in its discretion permit it

Reasoning

The court applied the Supreme Court's principles in Raila Odinga v IEBC on admitting additional evidence: parties must comply with timelines, but where the new material is small or limited so the other party can respond, the court should be considerate. The plaintiff sought to introduce a single letter, misfiled in error from a related Malindi CMCC matter, which the defendants could answer effectively. Prayers 2 and 3 were accordingly allowed, with costs to the defendants.

p. 3

Legal principles established

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  • The court has discretion under Order 18 Rule 10 and Section 146(4) of the Evidence Act to allow production of further documents and recall witnesses, with such provisions intended to secure a fair trial under Article 50(1) of the Constitution.

Court orders

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  1. 1.The application is allowed in terms of Prayer Nos. 2 and 3
  2. 2.The Defendants shall have the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 18 Rule 10
  • Civil Procedure RulesOrder 3 Rule 2
  • Civil Procedure RulesOrder 7 Rule 5
  • Civil Procedure RulesOrder 11
  • Evidence ActSection 146(4)
  • Constitution of KenyaArticle 50(1)

Cases cited (1)

  • Raila Odinga & 5 Others –vs- IEBC & 3 Others
    SCK Presidential Petitions No. 3, 4, and 5 of 2013 (2013) eKLR
Jurisdiction invoked
Order 18 Rule 10 of the Civil Procedure Rules and Section 146(4) of the Evidence Act

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, "Solomon Magana Kamiti v Moses Kweri Kinya & 6 others [2020] KEELC 2090 (KLR)", Case Analysis (2020). Notice of Motion dated 16th May 2019 (within the main suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2090/eng@2020-06-17

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