Kipkemboi & 4 others v Commissioner of Lands & 7 others (Environment and Land Case Civil Suit 924 of 2012) [2022] KEELC 2920 (KLR)
The bottom line
#Kenya's Environment and Land Court suspended a decade-old land case because the claimants turned up with a disorganized evidence bundle, sending parties back to a strict pretrial process.
What this practically means
#Executive summary
#Key legal issues
#Production of third-party affidavits and statements by a witness who is not their deponent
Objections upheld; only deponents/authors can produce affidavits and statements unless Sections 33-35 of the Evidence Act are invoked; petitioners undertook to avail Silas Komen Mwaita and Bibiana Rabuku
The court accepted the 7th Respondent's submission that affidavits are sworn dispositions on which only deponents can be cross-examined. Since counsel for the petitioners undertook to call the deponents of the impugned affidavits and the author of the disputed statements, the objections in respect of those documents were put to rest. The Munoko affidavits being pleadings could not be relied on as evidence, though summons to the Chief Land Registrar's office could issue.
Admissibility of photocopies and secondary evidence
Secondary evidence is not automatically inadmissible; copies of documents accompany pleadings under Order 3(2) and Order 7(5) and pretrial procedures under Order 11; the court adopts the pragmatic approach in the Evangeline Nyegera case
The court rejected the submission that photocopies can never be produced, holding that the Civil Procedure Rules 2010 require copies of documents to accompany pleadings and be served. Pretrial procedures envisage disclosure and advance determination of admissibility. Citing the Court of Appeal, it held that the Evidence Act allows secondary evidence by copies, provided the nature and relevance of documents is shown and the opposing party can cross-examine on veracity.
Categorisation of documents for production
The court classified documents into seven broad categories: affidavits/statements (produced by deponents/authors); public documents (produced without calling makers, originals availed); private documents (produced by makers); correspondence (produced by authors or summoned officers); unknown documents (produced from originating office); admissible documents (court orders, decrees, withdrawal notices produced by PW1); and illegible/repeated documents (to be replaced with clear copies)
To give effect to Active Case Management Principles and constitutional norms against procedural technicalities, the court exercised pragmatic case management, directing how each category of the 257-page bundle should be produced, and ordered the petitioners to replace illegible documents and desist from duplication.
Failure of proper pretrial preparation and case management
The petitioners' bundle was described as ignominious; the suit is to be subjected to a pretrial exercise, trial suspended pending compliance, and parties given leave to file fresh trial bundles within 60 days with default sanctions
The court found no proper pretrial had occurred despite a 6-7 year hiatus, and that the petitioners unleashed a disorganized bundle at trial contrary to Section 1A of the Civil Procedure Act and advocates' duty under subsection (3). Rather than allowing the trial to continue in that state, it suspended the trial and gave directions under Active Case Management Principles, with consequences of dismissal or undefended hearing for default.
Legal principles established
#- Affidavits are sworn dispositions and only their deponents can be adequately cross-examined on them; a witness cannot produce another person's affidavit or statement unless the exceptions in Sections 33-35 of the Evidence Act are invoked
- A party cannot rely on the pleadings of opponents as their evidence; such documents are for the platform of cross-examination
- Under Order 3(2) and Order 7(5) of the Civil Procedure Rules 2010, copies of documents to be relied on at trial must accompany and be served alongside the pleadings; the era of retinues of witnesses producing documents is gone
- Secondary evidence by way of copies is permissible provided the nature, number and relevance of the documents is shown, and the other party can cross-examine on veracity
- The court retains inherent jurisdiction to meet the interests of justice by applying pragmatic balance rather than a robotic approach to documentary evidence
Court orders
#- 1.That this suit shall be subjected to a pretrial exercise hence the scheduled trial is suspended unless the said exercise is accomplished before the date of the trial
- 2.That the petitioner and any other party herein is granted leave to file and serve a trial bundle containing their pleadings, Afidavits, witness statements and documentary evidence that they desire to rely upon; any orders expunging documents of the parties are varied such that parties are granted leave to file and serve any old or fresh documents and witness statements and affidavits
- 3.That the respective paginated Trial Bundles shall be filed and served within 60 days, failing which the suit shall stand dismissed on the part of the petitioners, or the case shall proceed as an undefended claim in respect of a defaulting respondent
- 4.That documents filed outside the given timelines, not served or not in the respective paginated bundles shall stand as expunged
- 5.That the file shall be arranged in three volumes: handwritten records; documents filed at time of delivery of the ruling; and fresh Trial Bundles and subsequent documents
- 6.That the parties are directed to focus on the shortest but fairest route of finalizing the matter by identifying the disputed and undisputed issues and documents during the date of Pretrial
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over a petition concerning land, brought under Article 40 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kipkemboi & 4 others v Commissioner of Lands & 7 others (Environment and Land Case Civil Suit 924 of 2012) [2022] KEELC 2920 (KLR)", Case Analysis (2022). ELC Case No. 924 of 2012 (Rul.). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2920/eng@2022-06-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.