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ELCPartially AllowedKwale ELC 144 of 2021 (formerly Mombasa ELC 411 of 2016)· [2022] KEELC 366 (KLR)

Thomas Shering v Nereah Micahel Said & 4 others [2022] KEELC 366 (KLR)

Environment and Land Court
21 April 2022
ADA.E. Dena
2,628 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed late-filed evidence to stand for justice, but threw out personal text messages as a privacy violation.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kwale (A.E. Dena J) in Kwale ELC 144 of 2021, formerly Mombasa ELC 411 of 2016, consolidated with Mombasa HCCC 442 of 2017, a land sale dispute. The ruling determined an interlocutory objection by the Defendant to a bundle of 230 pages of documents filed by the Plaintiff on 9th March 2022, a week before the hearing. The Defendant objected that the documents were filed late and without leave (pre-trial having closed), and that items 7 and 10 - a document examination report and correspondence - were illegally obtained and infringed the Defendants' privacy under Article 31 of the Constitution. The court formulated two issues: admissibility of late-filed documents, and expungement of the communications. On the first, the court held that although no explanation was given for the delay and the consolidation ruling of 7th July 2020 did not pronounce itself on the request to comply with Order 11, expunging relevant documents - notably the Document Examination Report bearing on a denied agreement - would not serve justice, and any prejudice could be met by cross-examination, following Susan Wairimu Ndegwa v James Gichere Ndegwa [2018] eKLR. On the second, the court found the emails admissible since the Plaintiff participated in them and they concerned the transaction, but expunged the SMS exchanges as containing unpleasant personal conversations of no probative value, implicating both parties' privacy. The objection was accordingly partly sustained.

Key legal issues

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01

Whether documents filed late and without leave should be admitted

Holding

The objection was rejected; the documents were admitted as duly filed despite lateness and absence of leave, because relevance and the just determination of the dispute outweigh procedural irregularity, and no prejudice was demonstrated

Reasoning

The court noted the suit was commenced in 2016 with an initial list of documents, and pre-trial had closed. Leave to comply with Order 11 upon consolidation was sought but the ruling of 7th July 2020 did not pronounce itself on the request. Nonetheless, expunging relevant documents - notably the Document Examination Report which went to the authenticity of a denied agreement - would not serve justice. Any prejudice could be cured by cross-examination of the Plaintiff or the maker of the documents.

p. 3
02

Whether correspondence marked 'Communication between parties at time of sale' infringed the Defendants' right to privacy under Article 31 and was illegally obtained

Holding

The emails were admitted because the Plaintiff was a participant and copyist in the communication, which related to the sale transaction; however the SMS messages were expunged as containing personal conversations of no probative value that would embarrass the parties

Reasoning

The emails at pages 191-200 were between the 3rd Defendant (purchaser), the 1st Defendant (vendor), the vendor's lawyer and the Plaintiff, all concerning the sale of the subdivisions; the Plaintiff participated in them, so no illegality arose. The SMS at pages 201-210 were between the Plaintiff and 1st Defendant; while covering the transaction, they contained unpleasant personal exchanges of no value to the issues, engaging both parties' right to privacy under Article 31.

p. 3

Legal principles established

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  • Documents should not be expunged merely for want of leave or lateness where they are relevant and would assist the court to adjudicate fully, and where no prejudice is occasioned to the opposing party

Court orders

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  1. 1.The document containing the Short Messaging Services (SMS) between the Plaintiff and the Defendant is expunged from the list of documents
  2. 2.The rest of the documents in the Plaintiff's list of documents dated 9th March 2022 are deemed duly filed and admitted

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 31
  • Civil Procedure RulesOrder 11

Cases cited (1)

  • Susan Wairimu Ndegwa v James Gichere Ndegwa
    [2018] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution; proceedings conducted pursuant to the Civil Procedure Rules (including Order 11 on case management)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Thomas Shering v Nereah Micahel Said & 4 others [2022] KEELC 366 (KLR)", Case Analysis (2022). Kwale ELC 144 of 2021 (formerly Mombasa ELC 411 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/366/eng@2022-04-21

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