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ELCPartially AllowedBungoma ELC suit (formerly Kitale HCCC No. 17 of 1997)· [2022] KEELC 843 (KLR)

Dorcas Indombi Wasike v Benson Wamalwa Khisa & 5 others [2022] KEELC 843 (KLR)

Environment and Land Court
9 March 2022
BOBoaz N. Olao
1,441 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed a party to re-open a closed case to produce documents, ruling courts should not shut out relevant evidence when no one is prejudiced.

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 Bungoma by Boaz N. Olao J on a Notice of Motion dated 29th November 2021 in which the defendants sought leave to re-open their case, limited to producing documents including an official search, transfer of land forms, consent letters, proceedings of the Tongaren Land Disputes Tribunal, payment receipts and mutation forms relating to land parcel Bungoma/Naitiri/1118. The application was filed after the defendants closed their case on 27th September 2021, and the court arrested judgment pending its determination. The plaintiff opposed, deposing that the documents had always been in the defendants' possession and characterising the application as a continuation of a long history of litigation over the parcel since 1997, including Kitale HCCC No. 17 of 1997 and Eldoret Civil Appeal No. 87 of 2004, and as an abuse of process. The court held that while Order 3 Rule 2 and Order 7 Rule 5 require documents to accompany pleadings, Article 50(1) permits late filing in appropriate cases; the key considerations are prejudice, the nature of the documents, reasons for non-production, and relevance. Finding no allegation that the documents were false, and noting the need for finality and that the defendants sought only to produce the documents for the court's inspection, the court allowed the application, deemed the documents filed and served, fixed mention for 23rd March 2022 for formal production, and ordered the defendants to meet the plaintiff's costs.

Key legal issues

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01

Whether leave to re-open a closed case to produce additional documents should be granted

Holding

Leave granted because the documents were not in the defendants' possession when they closed their case, are relevant, and the plaintiff did not allege they were false; the court arrested judgment to determine the application and allowed production limited to formal production of the documents.

Reasoning

Order 3 Rule 2 and Order 7 Rule 5 require documents to accompany pleadings, but Article 50(1) permits late filing in appropriate cases. Prejudice to the other side is the main consideration, alongside the nature of the documents, reasons for late production and relevance. The dispute had been in court since 1997 and finality required all parties to place all their evidence before the court. The defendants sought only to produce the documents for inspection.

p. 3

Legal principles established

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  • Courts should lean against shutting out relevant and admissible evidence where the application is made in good faith and causes no prejudice
  • The main consideration for allowing late production of documents is prejudice to the other party, together with the nature of the documents, reasons for non-production and relevance

Court orders

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  1. 1.The documents annexed to the 1st defendant's supporting affidavit dated 29th November 2021 be deemed as duly filed and served
  2. 2.The matter to be mentioned on 23rd March 2022 to take a further hearing date solely for the 1st defendant to formally produce the said documents
  3. 3.The defendants shall meet the plaintiff's costs occasioned by this application

Authorities

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Legislation

  • Constitution of KenyaArticle 25
  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 50(1)
  • Civil Procedure ActSections 1A, 3A, 63(e)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 3 Rule 2
  • Civil Procedure RulesOrder 7 Rule 5
Jurisdiction invoked
Articles 25, 50(1) and 159 of the Constitution; Sections 1A, 3A and 63(e) of the Civil Procedure Act; Order 51 Rule 1 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, "Dorcas Indombi Wasike v Benson Wamalwa Khisa & 5 others [2022] KEELC 843 (KLR)", Case Analysis (2022). Bungoma ELC suit (formerly Kitale HCCC No. 17 of 1997). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/843/eng@2022-03-09

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