Prafulla Enterprises Ltd v Katangi Developers Limited & 2 others [2020] KEELC 3076 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Admissibility and sufficiency of 'new evidence' as a foundation for a fresh civil suit
The new evidence (2015 Director of Survey investigations) failed the Ladd v Marshall threshold because it could have been obtained with reasonable diligence during earlier trials; the Survey Assistant had testified in the prior suit on instructions of the Director of Survey.
The court noted that in the 1999 suit PAUL KIBET RUGUT, a Survey Assistant, testified expressly on instructions of the Director of Survey, so the Director's genuine map could have been availed then. There was no obstacle to obtaining the evidence. The expert witness in this suit admitted he was unaware of prior litigation and investigations, suggesting the 2015 investigations were undertaken to patch up a weak case. New evidence in civil law is otherwise only admissible on appeal under Section 78(1)(d) of the Civil Procedure Act and Order 42 Rule 27 of the Civil Procedure Rules.
Legality of the 2015 amended survey plan
The 2015 survey plan, prepared about 18 years after the 1997 plans, contravened Section 31(2) of the Survey Act which limits rectification of errors to twelve months, and could not found the plaintiff's reliefs.
The court held that the 2015 plan was not procedurally prepared because Section 31(2) of the Survey Act provides a twelve-month window for correction of errors in survey plans. A plan prepared eighteen years later was in contravention of the law and could not be the basis of the reliefs sought.
Res judicata and limitation
The Court expressly declined to determine these issues because a ruling on them by S.M. Kibunja J dated 14th June 2017 was on appeal before the Court of Appeal.
The court held it could not revisit Kibunja J's ruling nor delve into matters pending before a superior court, and steered clear of the res judicata and limitation issues despite their prominence in testimonies and submissions. A stay application by the 1st defendant had already been dismissed by the Court of Appeal in Civil Application No 65 of 2017.
Probative value of the sale agreement dated 28th August 1993
The agreement did not describe the suit property as facing the Kisumu–Busia road, undercutting the plaintiff's claim of frontage.
The court found that nothing would have been easier than fully describing the property purchased, particularly that it was the property in which the plaintiff carried on business as tenant; its silence on frontage undermined the plaintiff's case.
Legal principles established
#- Fresh evidence justifying a new trial must satisfy the Ladd v Marshall conditions: not obtainable with reasonable diligence, of probable important influence, and apparently credible
- A fresh suit based on new evidence must not be used by a previously unsuccessful litigant to fill gaps or strengthen a weak case with contradictory or patch-up evidence
- Under Section 31(2) of the Survey Act, notices to correct errors in a survey plan must not be sent more than twelve months after the plan was sent to the Director
- Documents must speak for themselves; a sale agreement's silence on a critical description of the property cannot be supplemented
Court orders
#- 1.Expunged from the record the plaintiff's supplementary submissions filed 25th November 2019 and the 1st defendant's response to submissions filed 19th November 2019 (both filed without leave)
- 2.Dismissal of the plaintiff's suit
- 3.Costs of the suit to the 1st defendant, certified for two counsel
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit property; no specific provision invoked in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Prafulla Enterprises Ltd v Katangi Developers Limited & 2 others [2020] KEELC 3076 (KLR)", Case Analysis (2020). Not stated in judgment (Kisumu Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3076/eng@2020-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.