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ELCDismissed· [2023] KEELC 750 (KLR)

Tomno & another v Cherono & 3 others (Environment & Land Case 144 & 152 of 2019 (Consolidated)) [2023] KEELC 750 (KLR)

Environment and Land Court
13 February 2023
2,648 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that written submissions are a matter of practice, not law, and the plaintiff files first — with costs for objecting.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (L. A. Omollo, J) determines a procedural objection raised by the plaintiff in a land suit concerning parcel Baringo/Ravine-102/242, in which she seeks declarations of ownership, vacant possession, removal of a caution, a permanent injunction and general damages for trespass. The evidence of all parties had been heard; the only remaining step was filing of submissions. The plaintiff objected to the court's directions, contending that under order 18 rule 2 of the Civil Procedure Rules the party who adduces evidence last (here, the defendants) should file submissions first, relying on Kenyan and Indian authorities. The defendants countered that order 18 rules 1 and 2 govern only oral addresses and that, as the party bearing the burden of proof under section 107 of the Evidence Act, the plaintiff must file first. The court held that order 18 rules 1 and 2 relate to oral hearings and do not embrace written submissions, following Mutegi Mugwetwa. Written submissions in Kenya are a product of practice, not statute, under which the plaintiff files first, gaining the 'primacy and recency' advantage. Further, submissions are not evidence and are not compulsory; a court may decide on the claim, evidence and law alone. The objection was dismissed with costs to the defendants, and directions issued for the plaintiff to file and serve submissions within 21 days, the defendants to respond within a further 21 days, and a mention on March 27, 2023 to take a judgment date.

Key legal issues

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01

Whether order 18 rule 2 of the Civil Procedure Rules governs the order of filing written submissions

Holding

No. Order 18 rules 1 and 2 concern oral addresses during hearings; written submissions are a matter of practice in Kenya, under which the plaintiff typically files first and the defendant responds.

Reasoning

The court analysed the language of order 18 rule 2(3), noting that the words 'in the course of his address' are in the present participle tense and refer to oral addresses conducted in open court. The heading of order 18 ('hearing of suits and examination of witnesses') confirms the rules envisage oral hearings. Since the Civil Procedure Act and Rules make no provision for written submissions, their use is a practice invented by the bar and bench, giving the plaintiff (who bears the burden of proof) the primacy and recency advantage.

p. 4
02

Whether a court is bound to receive written submissions before rendering judgment

Holding

No. Submissions are not evidence and are not mandatory; a court may decide a case on the claim, evidence and applicable law without them.

Reasoning

Relying on Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi and Ngang'a v Owiti, the court held that submissions merely crystallise the substance of the case and concentrate the court's focus; they may be heard or dispensed with. It would be absurd for a court to refuse to write judgment or disregard a defendant's submissions merely because the plaintiff did not file first as directed.

p. 5

Legal principles established

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  • Order 18 rules 1 and 2 of the Civil Procedure Rules relate to oral proceedings and do not embrace written submissions; written submissions in Kenya are a matter of practice, not statute
  • Written submissions are not compulsory; a court may render a decision without them, as they are not evidence

Court orders

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  1. 1.The plaintiff's objection is dismissed with costs to the defendants
  2. 2.The plaintiff shall file and serve submissions upon the defendants within 21 days of the date hereof
  3. 3.The defendants shall file and serve submissions within 21 days upon service
  4. 4.The matter shall be mentioned on March 27, 2023 for submissions and to take a judgment date

Authorities

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Legislation

  • Civil Procedure RulesOrder 18 rules 1 and 2 (and rule 2(3))
  • Land Registration ActSection 75
  • Evidence ActSection 107
  • Civil Procedure Code (India)Order XVIII rule 2; Order 18 rules 3A-3F

Cases cited (9)

  • Remu Microfinance Bank Ltd v Robinson Muriuki Njeru
    [2017] eKLR
  • Rasiklal Manickand Dhariwal & another v M/S MSS Food Product
  • George Kinuthia Ndungu v British American Insurance (K) Co Ltd
    [2012] eKLR
  • Donald Maganga Mwachipfi v Ruth Sambo Shuma (Suing as the Administrator of the Estate of Elias Shuma Mwakireti
    [2015] eKLR
  • Sultan Saleh Bin Omer v Vijayachand Sirimal
    AIR 1966 1P 295
  • Jeremiah Omollo v Kenya Wildlife Service
    [2019] eKLR
  • Mutegi Mugwetwa & County Ministry of Lands, Physical Planning Energy & ICT County Government of Tharaka Nithi & 5 others; Chuka Igambang'ombe Development Association (Interested Party)
    [2019] eKLR
  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another
    [2014] eKLR, Nairobi Civil Appeal No 240 of 2011
  • Ngang'a & another v Owiti & another
    [2008] 1 KLR (EP) 749
Jurisdiction invoked
Original civil jurisdiction over a land suit; court seized of a procedural objection as to the order of filing written submissions

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, "Tomno & another v Cherono & 3 others (Environment & Land Case 144 & 152 of 2019 (Consolidated)) [2023] KEELC 750 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/750/eng@2023-02-13

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