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ELCDismissedNot stated in the excerpt (Notice of Motion dated April 6, 2022)· [2022] KEELC 3233 (KLR)

Kimani & another v Gichui & another (Environment & Land Case 1081 of 2016) [2022] KEELC 3233 (KLR)

Environment and Land Court
28 July 2022
5,193 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to re-open a closed case where the applicants sought to fix evidence gaps after a two-year unexplained delay.

What this practically means

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Executive summary

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The Plaintiffs/Applicants, by a Notice of Motion dated April 6, 2022, sought review of the orders closing their case and/or leave to re-open it to call a valuer to produce a valuation report; deeming of supplementary lists of documents and witnesses filed March 10, 2022 as properly on record; and leave to further amend the Plaint to introduce a claim for special damages. The Defendants/Respondents opposed via grounds of opposition and submissions, contending the application was an afterthought aimed at plugging gaps exposed in cross-examination and was mounted with unexplained delay. The court framed three issues: whether the amendment was merited, whether the case should be re-opened, and whether the application was mounted with inordinate delay. On amendment, the court held that introducing a special damages claim absent from the original and amended Plaints introduced a separate and distinct claim, would defeat accrued limitation rights under Section 4(1) of the Limitation of Actions Act given the 2008 contract, and would inflict grave injustice on the Defendants. On re-opening, the court found the intended evidence was aimed solely at filling gaps post cross-examination, which the court cannot sanction, and that the Plaintiffs offered no explanation for not tendering it earlier. On delay, the two-year lapse between closure of the Plaintiffs' case (July 20, 2020) and the application attracted the doctrine of laches, reinforced by Article 159(2)(b) of the Constitution. The application was dismissed with costs to the Defendants/Respondents on July 28, 2022 (Oguttu Mboya J).

Key legal issues

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01

Whether leave to further amend the Plaint to add special damages should be granted

Holding

Refused; the amendment introduces a separate and distinct claim, would defeat accrued limitation rights and cause grave injustice

Reasoning

The court held amendment is discretionary but must be exercised judiciously considering nature of amendments, delay, conduct and prejudice. The special damages claim was absent from the original and amended Plaints, introduced a distinct claim, and the suit contract dated 7 January 2008 meant the amendment would defeat limitation rights under Section 4(1) of the Limitation of Actions Act. The plaintiffs offered no explanation for six years' delay, and prejudice to the defendants was evident.

p. 5
02

Whether the Plaintiffs' case should be re-opened to call a valuer and produce a valuation report

Holding

Refused; the evidence was intended to plug gaps exposed after cross-examination and no explanation was offered for its absence

Reasoning

The court found the intended evidence was neither available nor intended at the onset, and the plaintiffs remained mute on why it was not tendered at hearing. The purpose was to prop up a case adversely exposed post cross-examination, which the court cannot sanction. The conditions in Susan Wavinya Mutavi (no inordinate delay, evidence not obtainable with reasonable diligence) were not satisfied.

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Whether the application was mounted with inordinate delay

Holding

Yes; the case closed on July 20, 2020 and the application was filed April 6, 2022 with no explanation, invoking the doctrine of laches

Reasoning

The court noted a two-year lapse between closure of the plaintiffs' case and the application, with no explanation offered for the delay. It invoked Article 159(2)(b) of the Constitution ('justice shall not be delayed') and the dictum in Said Sweilem Gheithan Saanum, holding that litigants must approach the court with due promptitude and that unexplained inordinate delay attracts the doctrine of laches.

p. 9

Legal principles established

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  • An application for re-opening of a case cannot be granted where its purpose is to fill gaps in the applicant's evidence exposed on cross-examination
  • A party seeking discretionary relief must explain any delay; unexplained delay attracts the doctrine of laches
  • An amendment introducing a new special damages claim may be refused where it defeats accrued limitation rights and prejudices the defendant

Court orders

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  1. 1.The Application dated the April 6, 2022 be and is hereby Dismissed with costs to the Defendants/Respondents.
Jurisdiction invoked
Inherent discretionary jurisdiction under the Civil Procedure Act (sections 1A and 1B cited); Article 159(2)(b) of the Constitution invoked on delay

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, "Kimani & another v Gichui & another (Environment & Land Case 1081 of 2016) [2022] KEELC 3233 (KLR)", Case Analysis (2022). Not stated in the excerpt (Notice of Motion dated April 6, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3233/eng@2022-07-28

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