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ELCPartially Allowed· [2022] KEELC 1212 (KLR)

David Muthami Muthee v Estate of James Titus Wambua & 4 others [2022] KEELC 1212 (KLR)

Environment and Land Court
23 February 2022
MOMogeni
2,438 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed a plaintiff to reopen his closed case for specific succession documents, but strictly refused an open-ended reopening.

What this practically means

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Executive summary

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After both parties had closed their cases and filed written submissions, the plaintiff moved the court by Notice of Motion dated 27/01/2022 seeking, among other things, review and setting aside of the ruling of 8/11/2021 that declined adjournment and summons to the Deputy Registrar, High Court Family Division, and leave to reopen his case to produce a further supplementary list of documents and call the Deputy Registrar as a witness concerning Nairobi Succession Cause No. 613 of 1994. The dispute concerned whether the grant relied on by the defendants related to the estate of James Titus Wambua or, as the Deputy Registrar later confirmed by letter and email, to the estate of Peter Wachira Kooro. The 4th defendant opposed, arguing the evidence lacked probative value given the adverse possession nature of the claim and that the legal threshold for reopening was not met. Applying the principles in Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd, the court held that reopening is discretionary, must be exercised judiciously, and turns on why the evidence was not adduced earlier. Accepting that the plaintiff had tried to procure the evidence before closing and that no prejudice was shown, the court allowed the application on conditions: it set aside the ruling of 8/11/2021 in part, reopened the plaintiff's case strictly to produce the listed documents through an officer of the Succession/Probate registry, reopened the defence case correspondingly, and ordered costs in the cause with a hearing on 15/03/2022.

Key legal issues

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01

Whether to reopen a plaintiff's case after both sides had closed to admit additional evidence

Holding

Application allowed on conditions because the plaintiff had diligently attempted to procure the evidence before closing his case and it only became available afterwards, and no prejudice was demonstrated

Reasoning

The court applied the Samuel Kiti Lewa principles: the discretion to reopen must be exercised judiciously, considering why the evidence was unavailable earlier. The plaintiff had sought adjournment and summons on 8/11/2021 and only closed his case when the evidence could not be procured. The Deputy Registrar's subsequent response showed the evidence was now available. The defendant suggested no prejudice. Reopening was granted but strictly limited to defined documents and a registry witness.

p. 3
02

Whether reopening should be open-ended

Holding

No; the reopening was confined to production of the specific documents and a witness from the Succession/Probate registry

Reasoning

To prevent proceedings being thrown generally open and to avoid delay, the court defined narrow parameters: production of the letter and a witness from the Family Division registry to prove Succession Cause No. 613 of 1994, with the defence given a corresponding limited right of response.

p. 3

Legal principles established

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  • An application to reopen a case to adduce fresh evidence requires the court to enquire why the evidence was not adduced before the case closed; reopening will not be allowed where the failure was deliberate, and the discretion must be exercised judiciously without embarrassing or prejudicing the opposite party
  • Reopening of a case should not be used to fill gaps in evidence and will be defeated by inordinate and unexplained delay

Court orders

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  1. 1.Prayer 2 allowed: stay of proceedings and/or taking further directions in respect of filing of written submissions and/or fixing a judgment date pending hearing and determination of the application
  2. 2.Prayer 3 allowed in part: review and setting aside of the Ruling delivered on 8/11/2021 in so far as it declined to allow the plaintiff to call one more witness and adduce a new document
  3. 3.The plaintiff's case reopened but limited strictly to production of the further list of documents and supplementary list of witnesses in relation to Nairobi High Court Succession Cause Number 613 of 1994, the estate of Peter Wachira Kooro
  4. 4.The documents to be produced by an officer from Nairobi High Court Succession or Probate registry; the plaintiff to procure the witness's attendance using the usual procedure
  5. 5.The defence case similarly reopened but limited strictly to responding to the evidence adduced under order (3)
  6. 6.Prayer 4 allowed regarding orders issued on 8/11/2021 on filing of submissions
  7. 7.Costs in the cause
  8. 8.Hearing scheduled for 15/03/2022

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159; Article 159(2)(d)
  • Environment and Land Court ActSections 13, 17, 18 & 19
  • Civil Procedure Act (Cap 21)Sections 1A & 1B
  • Civil Procedure Rules 2010Order 51

Cases cited (10)

  • Khalif Sheikh Adan vs Attorney General
    (2019) eKLR
  • Standard Chartered Financial Services Limited & 2 Others vs Manchester Outfitters (Suiting Division) Limited (Now Known as King Woolen Mills Limited & 2 Others
    [2016] eKLR
  • Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & another
    [2015] eKLR
  • Nakuru Automobile House Ltd v Lawrence Maina Mwangi & another
    [2017] eKLR
  • Emily Cherono Kiombe v Jacob Kamoni Kari
    (2018) eKLR
  • Odoyo Osodo v Rael Obara Ojuok & 4 others
    (2017) eKLR
  • Johana Kipkemei Too v Hellen Tum
    (2014) eKLR
  • Garissa Maize Millers Limited vs. Attorney General & 2 others
    (Civil Appeal (Application) 160 of 2016) [2021] KECA 197 (KLR) (5 November 2021)
  • Simba Telecom –V- Karuhanga & Anor
    (2014) UGHC 98
  • Smith –Versus- New South Wales
    [1992] HCA 36; (1992) 176 CLR 256
Jurisdiction invoked
Article 159 of the Constitution of Kenya 2010; Sections 13, 17, 18 & 19 of the Environment and Land Act; Section 1A & 1B of the Civil Procedure Act (Cap 21); Order 51 of the Civil Procedure Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "David Muthami Muthee v Estate of James Titus Wambua & 4 others [2022] KEELC 1212 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1212/eng@2022-02-23

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