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ELCDismissedNakuru ELC Case No. 133 of 2015 (transferred to Nyeri ELC, 2017)· [2023] KEELC 454 (KLR)

Kareithi v Barclays Bank of Kenya & 3 others (Environment & Land Case 51 of 2017) [2023] KEELC 454 (KLR)

Environment and Land Court
2 February 2023
JOJ. O. Olola
1,571 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to let a land defendant add new evidence after the plaintiff closed their case, because she showed no reason for the delay.

What this practically means

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Executive summary

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By a Notice of Motion dated 24th May 2022, Rose Xavier Withey, the 4th Defendant in a land suit originating as Nakuru ELC Case No. 133 of 2015 and transferred to the Nyeri Environment and Land Court in 2017, sought leave to file and serve a Further Witness Statement, an Additional List of Documents and a Case Summary out of time, with corresponding deeming orders and costs in the cause. The application was supported by her affidavit explaining that in February 2021 companies in which she is a director purchased Naromoru Block 1/Ragati/390, adjacent to the suit land Naromoru Block 1/Ragati/391, and that she wished to place the sale agreement and related evidence before the Court for fair adjudication. The Plaintiff opposed, pointing out that the 4th Defendant was enjoined on 5th May 2021 with 14 days to file documents, indicated readiness at pre-trial, and that the Plaintiff had already testified and closed his case on 25th January 2022. Justice J. O. Olola observed that the sale agreement was dated 24th February 2021 and was available before the enjoining orders, and that the 4th Defendant offered no explanation for the delay. Applying the reasonable-diligence test in Mohamed Abdi Mohamed v Ahmed Abdullahi Mohamed, the Court held that it would err in allowing a party to patch up weaknesses in its case after the Plaintiff closed his case. The motion was dismissed with costs on 2nd February 2023.

Key legal issues

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01

Leave to adduce additional evidence at trial

Holding

Application dismissed; the evidence was available well before trial and no diligence was shown

Reasoning

The sale agreement sought to be introduced was dated 24th February 2021, before the 4th Defendant was even enjoined to the suit on 5th May 2021. He was given 14 days to file documents, indicated readiness at pre-trial, and was granted a further 30 days, yet offered no explanation for the delay. Allowing the application would enable him to patch up weak points in his case after the Plaintiff had testified and closed his case, causing prejudice.

p. 4

Legal principles established

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  • A party seeking to adduce additional evidence must demonstrate that it could not have been obtained with reasonable diligence at the trial

Court orders

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  1. 1.The Notice of Motion dated 24th May 2022 is dismissed with costs to the Plaintiff

Authorities

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Cases cited (1)

  • Mohamed Abdi Mohamed -vs- Ahmed Abdullahi Mohamed and 3 Others
    (2018) eKLR
Jurisdiction invoked
Inherent powers of the Environment and Land Court over a part-heard suit transferred from Nakuru ELC Case No. 133 of 2015

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, "Kareithi v Barclays Bank of Kenya & 3 others (Environment & Land Case 51 of 2017) [2023] KEELC 454 (KLR)", Case Analysis (2023). Nakuru ELC Case No. 133 of 2015 (transferred to Nyeri ELC, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/454/eng@2023-02-02

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