Lawi Kigen Kiplagat v Japheth Amenya Ratemo [2022] KEELC 857 (KLR)
The bottom line
#A Kenyan court partially allowed late-filed evidence in a land dispute, admitting some documents and a witness statement while expunging prejudicial ones.
What this practically means
#Executive summary
#Key legal issues
#Admissibility of documents filed without leave after closure of the plaintiff's case
Documents already on record without objection (the receipt and associated cheques) were admissible; documents issued in 2013 during the pendency of the suit and never discovered or put to the plaintiff were expunged as prejudicial, particularly because the deceased defendant who could speak to them was no longer available
The court noted that parties must file all documents to be relied upon at pre-trial, and further documents require leave. The receipt and cheques had been filed on 20th June 2018 with the plaintiff's counsel raising no objection, so they were properly on record. Documents numbered 2, 6 and 7 were issued in 2013 while injunctive orders were in force, were never discovered, and the deceased defendant, the appropriate person to speak to them, could not be cross-examined; admitting them would prejudice the plaintiff.
Admissibility of a further witness statement by a substituted defendant
The further witness statement was admissible, since the substituted defendant was entitled to make a defence appropriate to his character as legal representative of the deceased, subject to the exclusion of the expunged documents
Order 24 Rules 4(1) and (2) permit the legal representative of a deceased defendant to be joined and to make any defence appropriate to his character. Japheth Amenya Ratemo was substituted precisely to prosecute the defence and would be the witness taking the stand; he was therefore entitled to file a further witness statement responding to the new cause of action introduced by amendment, though he could not refer to the expunged documents.
Legal principles established
#- Once pre-trial directions have been taken, a party is precluded from filing further witness statements or documents without leave of the court
- The case management regime under Order 11 is designed to prevent trial by ambush and ensure efficient trial management
- A substituted legal representative of a deceased defendant may make a defence appropriate to his character, including filing a further witness statement
Court orders
#- 1.Allowed the production of the receipt No.1191496 dated 14th December 2012 for Kshs.2,443,600/= from the Agricultural Settlement Fund and the copies of cheques itemized under items 3, 4 and 5 of the supplementary list of documents as part of the defendant's documents
- 2.Disallowed and expunged from the record: (i) letter dated 20th February 2013 (item 2); (ii) letter dated 22nd January 2013 (item 6); and (iii) Transfer and Discharge of Charge (item 7) in the supplementary list of documents
- 3.Held the further witness statement of Japheth Amenya Ratemo dated 25th October 2021 admissible, with the witness precluded from making any reference to the expunged documents
- 4.Ordered that each party bear their own costs of the application
- Jurisdiction invoked
- Civil Procedure Act, Sections 3, 3A & 63 and Orders 2, 8, 11, 24 and 51 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lawi Kigen Kiplagat v Japheth Amenya Ratemo [2022] KEELC 857 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/857/eng@2022-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.