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ELCDismissedNot stated in the judgment· [2021] KEELC 986 (KLR)

Stephen Kibiwott Cheruiyot v Luka Chemweno & 3 others; Commissioner of Lands County Lands Registrar (3rd Party) [2021] KEELC 986 (KLR)

Environment and Land Court
11 November 2021
EOE.O. OBOGA
1,540 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Eldoret (E.O. Obaga J) disposed of two similar applications in a land dispute over Eldoret Municipality Block 12/343 filed in 2010, where the Plaintiff's case and the 1st to 3rd Defendants' cases had closed in March 2020 and the 4th Defendant's case had been heard. The 1st Defendant sought a stay of further proceedings and an order referring various documents bearing the Plaintiff's signature - including a lease dated 3rd July 2009, a letter to the Commissioner of Lands, a verifying affidavit and a witness statement - to a forensic document examiner, contending the signatures differed. The 4th Defendant sought leave to re-open his case solely to produce a document examiner's report dated 12th June 2021 concluding that the questioned signatures were not made by the Plaintiff. The Plaintiff opposed both applications as abusive, belated and designed to delay the suit. The court framed two issues and dismissed both applications with costs to the Plaintiff. It held the documents had been in the Applicants' possession since 2012, had been served and partly cross-examined upon, and that the demands were an afterthought arising only after the third parties' advocate indicated the evidence he would produce, showing bad faith. The court refused to aid indolent parties by re-opening closed cases, stressing that litigation must come to an end and that the suit would be determined on the Ministry of Lands records rather than on the contested signatures.

Key legal issues

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01

Whether a court should order forensic examination of documents at a late stage of trial

Holding

The application was refused as an afterthought made in bad faith after inordinate delay; the documents had been in the Applicants' possession since 2012 and were the subject of cross-examination

Reasoning

The court observed that the documents were served on all Applicants as early as 2012 and were available before they closed their defences. The demand for forensic examination arose only after the third parties' counsel indicated the evidence he would produce. The court found the timing showed the applications were not made in good faith and were aimed at delaying the conclusion of the case. Fairness does not require the court to aid indolent parties who sat on available evidence.

p. 2
02

Whether a party may re-open its case to introduce additional evidence after closing it

Holding

Leave to re-open was refused; a case cannot be re-opened to fill gaps identified as the case progresses

Reasoning

The court held that parties are expected to put forward their case at the earliest opportunity and will not be permitted to re-open cases to counter evidence adduced by the opposing party after closing its own case. The report the 4th Defendant sought to introduce was based on documents long in his possession. Allowing the application would reward indolence and prolong litigation contrary to the principle that litigation must come to an end.

p. 3

Legal principles established

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  • A party must put forth its entire case at the earliest opportunity; a court will not allow a party to build its case as the hearing progresses or to plug gaps after the opposite party has closed its case
  • Indolent parties will not be aided by re-opening cases to adduce additional evidence that was available to them before they closed their cases

Court orders

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  1. 1.The 1st Defendant's application dated 23rd October, 2020 seeking stay of proceedings and reference of documents for forensic examination is dismissed
  2. 2.The 4th Defendant's application dated 28th June, 2021 seeking leave to re-open his case and produce a forensic document examiner's report is dismissed
  3. 3.Costs of both applications awarded to the Plaintiff
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (land dispute over Eldoret Municipality Block 12/343); specific provision not cited

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Stephen Kibiwott Cheruiyot v Luka Chemweno & 3 others; Commissioner of Lands County Lands Registrar (3rd Party) [2021] KEELC 986 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/986/eng@2021-11-11

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