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ELCOtherNot stated in the excerpt· [2021] KEELC 3686 (KLR)

Parikien Ole Naikuni Oseur v Agricultural Finance Corporation & another [2021] KEELC 3686 (KLR)

Environment and Land Court of Kenya
12 April 2021
COChristine Ochieng
1,051 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Writing 'without prejudice' on a letter does not automatically shield it in Kenyan courts if it was a demand notice rather than genuine settlement talks.

What this practically means

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Executive summary

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This is a ruling on an interlocutory objection by the Plaintiff's Counsel to the production by the 2nd Defendant of a letter dated 27th May, 2003 marked 'without prejudice', which the 2nd Defendant sought to produce as an exhibit. The 2nd Defendant argued the letter, authored by the Plaintiff's advocates, admitted the transaction (a Sale Agreement, purchase price of Kshs. 462,000 for 60 acres at Enkaroni, Kajiado) and was not written during negotiations. The Plaintiff contended a 'without prejudice' letter is inadmissible unless its terms were accepted, and that the maker should be called. The court framed one issue: whether the letter should be produced as an exhibit. Relying on Rush and Tompkins Ltd v Greater London Council and Ocean Bulk Shipping v TMT Asia, the court held the 'without prejudice' rule protects only negotiations genuinely aimed at settlement, does not depend on the label used, and is not absolute. The letter was a demand notice written before the suit (filed 8th July 2016) during which the parties were not negotiating; moreover, the Plaintiff had pleaded fraud in the Plaint. Balancing the public interests in promoting settlement and full disclosure, the court found the letter admissible. The objection was dismissed, the 2nd Defendant permitted to produce the letter as an exhibit, with costs in the cause.

Key legal issues

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01

Admissibility of a letter marked 'without prejudice'

Holding

The letter was admissible because it was a pre-suit demand notice, not part of settlement negotiations, and the Plaintiff had raised allegations of fraud in the Plaint

Reasoning

The court applied Rush and Tompkins, holding the 'without prejudice' rule protects only genuine settlement negotiations. The 2003 letter was a demand note from the Plaintiff's advocates warning the 2nd Defendant, written before the suit filed in 2016 and outside any negotiations. Balancing the public interest in settlement against full disclosure, and given the Plaintiff's pleaded allegations of fraud, production was warranted.

p. 2

Legal principles established

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  • The 'without prejudice' rule applies only to negotiations genuinely aimed at settlement and is not absolute; the material may be admitted where the justice of the case requires it
  • The application of the 'without prejudice' rule does not depend on use of the phrase, but on whether the parties were genuinely seeking to compromise a dispute

Court orders

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  1. 1.The Plaintiff's objection to the production of the letter dated 27th May, 2003 is dismissed
  2. 2.The 2nd Defendant is allowed to produce the letter dated 27th May, 2003 as an exhibit
  3. 3.Costs will be in the cause

Authorities

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Cases cited (3)

  • Rush and Tompkins Ltd V Greater London Council
    [1989] AC 1280
  • Ocean Bulk Shipping and Trading SA V TMT Asia Limited and others
    (2010) UK SC 44
  • Ongata Rongai Total Filing Station Ltd V Industrial & Commercial Development Corporation
    (2009) eKLR
Jurisdiction invoked
First-instance civil suit before the Environment and Land Court at Kajiado

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, "Parikien Ole Naikuni Oseur v Agricultural Finance Corporation & another [2021] KEELC 3686 (KLR)", Case Analysis (2021). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3686/eng@2021-04-12

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