Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedEnvironment & Land Case 102 of 2019· [2022] KEELC 13374 (KLR)

Kiragu v Commissioner of Lands & 5 others

Environment and Land Court
4 October 2022
FNFM Njoroge
2,427 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan court confirmed that parties can still add key evidence after pleadings close, as long as it is relevant and fair to the other side.

What this practically means

#

Executive summary

#
In an interlocutory ruling in a long-running land ownership dispute over Nakuru Municipality Block 18/59, Titus Kiragu (Plaintiff/Applicant) moved the court by Notice of Motion dated December 17, 2021 under Articles 50(1) and 159 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 8 Rule 3 of the Civil Procedure Rules, seeking extension of time to file a witness statement from the Lands office and leave to file a supplementary witness statement. He explained that he had awaited a report from the Permanent Secretary for Lands following the death of the wife of the late Hon Obwocha, and that the application was filed within the 21 days allowed by the court's orders of November 30, 2021. The 2nd Defendant opposed, arguing the application was an afterthought intended to delay a suit filed in 2010, that pleadings had closed years earlier, that the Applicant had filed documents without leave, and that late filings would prejudice his right to a fair trial. The 1st, 3rd and 5th Defendants did not oppose. The court found the application was filed three days within the 21-day window and therefore competent. Relying on Order 18 rule 10 of the Civil Procedure Rules, section 146 of the Evidence Act, Article 50(1) and Article 159(2)(b), and applying the Raila Odinga timeline principles and the Torino Enterprises approach to additional evidence, the court held the documents bear directly on the central ownership issue and no prejudice would arise since they had been served and could be challenged at trial. The application was allowed with costs to the 2nd Defendant.

Key legal issues

#
01

Timeliness of the application under the orders of November 30, 2021

Holding

The application filed on December 17, 2021 was within the 21-day period, being three days shy of the deadline.

Reasoning

The court counted 21 days from the November 30, 2021 orders and found the application filed on December 17, 2021 fell within that window, so no prior leave to file outside the period was required and the timeliness objection failed.

p. 4
02

Whether leave to file further witness statements and documents after closure of pleadings should be granted

Holding

Leave was granted because the documents are relevant to the central ownership issue, the suit has not been heard, and no prejudice would be caused since the documents were served and can be challenged at trial.

Reasoning

Order 18 rule 10 and section 146 of the Evidence Act empower the court to allow further evidence, serving the Article 50(1) fair hearing guarantee tempered by Article 159(2)(b) against undue technicality. The documents bear directly on ownership, and the respondents may cross-examine on them.

p. 5

Legal principles established

#
  • After pre-trial conference the court retains power to allow further witnesses or documents, to secure the fair hearing guaranteed by Article 50(1), and procedural rules must not impede a fair trial.
  • Additional evidence may be admitted where it bears directly on the main issue in controversy and no prejudice is occasioned to the opposing party who can interrogate it at trial.

Court orders

#
  1. 1.The Plaintiff/Applicant's supplementary witness statement and additional documents on record are deemed to be properly filed and served
  2. 2.The parties shall all attend a mention on October 25, 2022 for the purposes of fixing a hearing date for the main suit
  3. 3.The costs of the application be borne by the 2nd Defendant/Respondent

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159(2)(b)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure Rules, 2010Order 8 Rule 3
  • Civil Procedure Rules, 2010Order 18 rule 10
  • Evidence ActSection 146

Cases cited (4)

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others
    App No 16 of 2014 [2014] eKLR

    Principles for extension of time

  • Alois Oceano D'sumba v Rajnikant Narshi Shah & Another
    [2017] eKLR

    Expunging documents filed after close of pleadings

  • Raila Odinga & 5 Others v IEBC & 3 Others
    SCK Presidential Petitions Nos 3, 4 and 5 of 2013 [2013] eKLR

    Duty to comply with timelines and fair, level playing field when admitting additional evidence

  • Attorney General v Torino Enterprises Limited

    Impact of additional evidence is a matter for determination on merit upon evaluation of all evidence

Jurisdiction invoked
Article 50(1) and 159 of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 8 Rule 3 of the Civil Procedure Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kiragu v Commissioner of Lands & 5 others", Case Analysis (2022). Environment & Land Case 102 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13374/eng@2022-10-04

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