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ELCAllowed· [2021] KEELC 1821 (KLR)
Fredrick Laibuni Mailutha v County Government of Kajiado & 2 others [2021] KEELC 1821 (KLR)
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·~11 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The Plaintiff moved the court by Notice of Motion dated 14 January 2021 seeking leave to reopen his case and to adduce additional evidence limited to a Further List of Documents inadvertently omitted from his original List of Documents filed on 16 January 2015. The Plaintiff's case had closed on 26 November 2019 when PW1 testified, but the Defence case had not commenced. The application was supported by affidavits of Itiije Mailutha (son and legal representative of the Plaintiff) and Julius Migos Ogamba (Plaintiff's Advocate), who explained the omission was an inadvertent error by former counsel not detected until pre-trial on 13 January 2021. The Defendants, through a replying affidavit of Francis Sakuda, the 1st Defendant's County Secretary, opposed the application, contending the Plaintiff had ample opportunity to produce the documents, that the new evidence was an afterthought, and that it would prejudice the defence by ambush. The court framed a single issue: whether the Plaintiff should be granted leave to reopen his case and file additional evidence. Relying on Order 18 rule 10, Section 146(4) of the Law of Evidence Act, Article 159(2)(d) and Article 50 of the Constitution, and applying Raila Odinga v IEBC and Pinnacle Projects Ltd, the court held that reopening is discretionary; that the documents were relevant and material, most emanating from the 1st Defendant; and that mistake of counsel should not be visited on the litigant. The Defence would suffer no prejudice as its case had not commenced and it was granted reciprocal leave to file further documents and witness statements. The application was allowed; costs abide the outcome of the suit.
Key legal issues
#01
Whether leave should be granted to reopen the Plaintiff's case and admit additional evidence after closure of the Plaintiff's case
Holding
Leave granted; the documents were relevant, material and emanated largely from the 1st Defendant, and the Defendants would suffer no prejudice since their case had not commenced.
Reasoning
The court noted the omission was inadvertent counsel error discovered at pre-trial, that reopening is a discretionary matter, and that Articles 50 and 159(2)(d), the Civil Procedure Rules and the Law of Evidence Act all permit admission of further evidence. The Defendants would retain full opportunity to cross-examine and rebut, so substantive justice favoured admission.
p. 3
Legal principles established
#- A court may allow a party to reopen its case and adduce additional evidence after closure where the evidence is relevant and material and no prejudice is caused, especially before the defence case commences.
- Justice is to be administered without undue regard to procedural technicalities under Article 159(2)(d).
Court orders
#- 1.The Plaintiff be and is hereby granted leave to reopen his case and adduce additional evidence limited to the production of the documents listed in the Plaintiff's annexed Further List of Documents
- 2.The Plaintiff be and is hereby directed to file and serve the annexed Further List of Documents within fourteen (14) days from the date hereof
- 3.The Defendants are granted leave of fourteen (14) days to file and serve a further List of Documents as well as Witness Statements if need be
- 4.The Costs of this application will abide the outcome of the suit
- Jurisdiction invoked
- Sections 1A, 1B, 3A of the Civil Procedure Act; Order 1B and 51 of the Civil Procedure Rules; Section 146 of the Evidence Act; Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kilonzo v Top Grade Logistics Limited & 2 others (Environment and Land Case 1 of 2024) [2026] KEELC 3399 (KLR)[2026] KEELC 3399 (KLR)28 May 2026
Cite this brief
#Cite this brief
Caselaw, "Fredrick Laibuni Mailutha v County Government of Kajiado & 2 others [2021] KEELC 1821 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1821/eng@2021-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.