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ELCPartially AllowedNot stated in judgment· [2022] KEELC 600 (KLR)

Florence Nyaguthii Muchemi v Attorney General & 3 others [2022] KEELC 600 (KLR)

Environment and Land Court
25 March 2022
JKJ. G. Kemei
1,905 words in judgment
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The bottom line

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A Thika court refused a landowner a second chance to add evidence after closing her case, but ordered officials to visit the disputed land to fix its boundaries.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Thika (J. G. Kemei, J) on a Notice of Motion dated 27th May 2021 in an ongoing land boundary suit filed on 30th May 2016. The Plaintiff sought leave to file a further list of documents and witness statement and to be recalled to testify in response to the Defendants' amended defences and counterclaims filed after she had closed her case, and further sought an order that the National Government Surveyor, Thika attend a site visit to identify the suit property's boundaries. The application was opposed by the 3rd Defendant, who argued the Plaintiff had ample time, that the request amounted to an ambush, and that any issues could be addressed in submissions; the 3rd Defendant alternatively suggested the Land Registrar also attend any site visit under Sections 18 and 19 of the Land Registration Act. The Court reasoned that although the Plaintiff had closed her case ex parte in 2017, that closure was later set aside, she was granted leave in 2019 to file further documents and reopened her case, and all parties had since closed their cases. The Plaintiff disclosed no new evidence or issues warranting further evidence, so prayer 1 was denied. The Court however allowed prayer 2, finding the site visit relevant to the boundary and encroachment issues and noting its earlier implementation had been frustrated by the Covid-19 pandemic. The Land Registrar, Thika was directed to accompany the Government Surveyor on site with the Deputy Registrar and the parties. Costs were ordered to be in the cause.

Key legal issues

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01

Whether leave should be granted to file further documents and witness statements and recall the Plaintiff after closure of all cases

Holding

The application was denied because the Plaintiff had already been afforded leave to reopen her case and file further documents, and no new evidence or issues were disclosed to justify a further indulgence

Reasoning

The Court traced the proceedings: the Plaintiff testified ex parte in 2017; the Defendants later obtained orders setting aside the closure of the Plaintiff's case, were allowed to file amended pleadings, and in 2019 the Plaintiff was granted leave to file further documents and reopened her case. All parties closed their cases. No basis for further evidence was shown, so the balancing of fairness under Articles 50 and 159(2)(d) and the Civil Procedure Rules' anti-ambush safeguards did not favour the Plaintiff.

p. 3
02

Whether a site visit by the Government Surveyor should be ordered

Holding

Allowed, because the site visit is relevant to the boundary and encroachment issues in controversy and had earlier been allowed but frustrated by the Covid-19 pandemic

Reasoning

The Court noted the dispute concerns the boundaries of the suit land and possible encroachment. The site visit had already been allowed previously but its implementation was hampered by Covid-19 movement restrictions. The Court found the prayer relevant and, to assist boundary identification, directed that the Land Registrar Thika accompany the Government Surveyor, citing the 3rd Defendant's own suggestion based on Sections 18 and 19 of the Land Registration Act.

p. 3

Legal principles established

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  • Parties may seek leave of the Court to file additional documents, and each application is determined on its own circumstances in pursuit of substantive justice
  • A party seeking to adduce additional evidence after closing its case must disclose the issues to be addressed and demonstrate discovery of new evidence or that it is in the interests of justice

Court orders

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  1. 1.Prayer 1 (leave to file further documents and witness statements and recall the Plaintiff) is denied
  2. 2.Prayer 2 is allowed: the Land Registrar, Thika is ordered to accompany the Government Surveyor on site along with the Honourable Deputy Registrar of the Court and the parties and/or their representatives on a day to be agreed before the Deputy Registrar
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 18 Rules 10 & 11; Order 3 rule 2; Order 7 rule 5; Orders 3, 7 & 11
  • Land Registration ActSections 18 and 19

Cases cited (1)

  • Johana Kipkemei Too v Hellen Tum
    (E&L No. 975 of 2012) [2014] eKLR
Jurisdiction invoked
Inherent jurisdiction under Sections 1A, 1B and 3A of the Civil Procedure Act; Articles 50 and 159(2)(d) of the Constitution

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, "Florence Nyaguthii Muchemi v Attorney General & 3 others [2022] KEELC 600 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/600/eng@2022-03-25

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