Tomno & another v Cherono & 3 others (Environment & Land Case 144 & 152 of 2019 (Consolidated)) [2023] KEELC 750 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether order 18 rule 2 of the Civil Procedure Rules governs the order of filing written submissions
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.
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.
Whether a court is bound to receive written submissions before rendering judgment
No. Submissions are not evidence and are not mandatory; a court may decide a case on the claim, evidence and applicable law without them.
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.
Legal principles established
#- 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
#- 1.The plaintiff's objection is dismissed with costs to the defendants
- 2.The plaintiff shall file and serve submissions upon the defendants within 21 days of the date hereof
- 3.The defendants shall file and serve submissions within 21 days upon service
- 4.The matter shall be mentioned on March 27, 2023 for submissions and to take a judgment date
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.