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ELCAllowedConsolidated causes (numbers not stated in the judgment)· [2021] KEELC 1589 (KLR)

Anne K. Kimathi & 5 others v Teleposta Pension Scheme Registered Trustees [2021] KEELC 1589 (KLR)

Environment and Land Court
4 October 2021
BEB M Eboso
1,708 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 allowed a defendant to re-open its case to adduce missing documents, because it acted diligently and the delay caused no real prejudice.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (B M Eboso J) determines a notice of motion dated 12/3/2021 in which the defendant, in consolidated causes, sought to re-open its defence case after both parties had closed their evidence on 25/1/2021 and directions on submissions had been given. The defendant wished to adduce completion notices which its former advocates, M/s Kale Maina & Bundotich Advocates, had been unable to trace until after closure of the defence case. The plaintiffs opposed, citing prejudice, the delay, and DW1's alleged denial that completion notices were issued. The court framed a single issue: whether the application met the criteria for re-opening a party's case. Noting that neither the Civil Procedure Rules nor the Evidence Act provides an express framework (save Section 146(4) of the Evidence Act and Order 18 rule 10 of the Civil Procedure Rules permitting recall of witnesses), the court set out six principles drawn from Mohamed Abdi Mohamud, Samuel Kiti Lewa and Ladd v Marshall: judicious exercise of discretion, no gap-filling, no inordinate delay, reasonable diligence, likely important influence of the evidence, and apparent credibility. The court found the defendant's diligence explanation uncontroverted, held that the evidence on service of completion notices was relevant and that plaintiffs could cross-examine, and corrected the record that DW1 had said he did not know if notices were issued rather than denying issuance. Prayers 2, 3 and 4 were allowed, with costs of Kshs 20,000 to each plaintiff law firm. As the judge had been transferred from Milimani to Thika ELC, the file was referred for directions before the relevant Milimani judge.

Key legal issues

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Whether the defendant's application to re-open its defence case after closure met the criteria for re-opening

Holding

The application was allowed; the unavailability of the completion notices despite diligence was not controverted, the evidence was relevant, the plaintiffs could cross-examine, and prejudice was compensable by costs.

Reasoning

The court reiterated six principles governing re-opening of a party's case, drawn from Commonwealth and Kenyan authority. It found the defendant's explanation - that counsel could not trace the completion notices despite reminders - uncontroverted on evidence. The evidence on service of completion notices was relevant to just adjudication. DW1 had not categorically denied issuance, only said he did not know. Any costs burden on plaintiffs could be met by an award of costs, so no real prejudice arose.

p. 3

Legal principles established

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  • The jurisdiction to re-open a party's case is discretionary and must be exercised judiciously, guided by principles of absence of prejudice, no gap-filling, no inordinate delay, due diligence, importance of the evidence, and apparent credibility.

Court orders

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  1. 1.Prayers 2, 3 and 4 of the notice of motion dated 12/3/2021 allowed, permitting the defendant to re-open its case and adduce the completion notices as additional evidence
  2. 2.The defendant to pay each law firm on record for the plaintiffs Kshs 20,000 as costs, payable within 30 days
  3. 3.Proceedings in the file to be typed forthwith
  4. 4.The Milimani ELC Deputy Registrar to list the file for directions before the relevant Judge at Milimani ELC, the author having been transferred to Thika

Authorities

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Legislation

  • Evidence ActSection 146(4)
  • Civil Procedure RulesOrder 18 rule 10
  • Law Society of Kenya Conditions for Salenot specified

Cases cited (6)

  • Rain Drops Limited v County Government of Kilifi
    (2020) eKLR
  • Raila Odinga & 5 others v IEBC & 3 others
    SCK Presidential Petition [2013] eKLR
  • Johana Kipkembo Too v Hellen Tum
    [2014] eKLR
  • Mohamed Abdi Mohamud v Ahmed Abdullahi Mohamad & others
    (2018) eKLR
  • Samuel Kiti Lewa v Housing Finance Company of Kenya Limited & another
    (2015) eKLR
  • Ladd v Marshall
    (1954) 3 All ER 745
Jurisdiction invoked
Inherent discretionary jurisdiction to re-open a party's case, grounded in Section 146(4) of the Evidence Act and Order 18 rule 10 of the Civil Procedure Rules

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, "Anne K. Kimathi & 5 others v Teleposta Pension Scheme Registered Trustees [2021] KEELC 1589 (KLR)", Case Analysis (2021). Consolidated causes (numbers not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1589/eng@2021-10-04

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