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ELCAllowedEnvironment & Land Case 1395 of 2016· [2023] KEELC 15766 (KLR)

Murungi v Cretum Properties Limited

Environment and Land Court
22 February 2023
JOJudy Omange
1,123 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 allowed a landowner to reopen her closed case and add expert handwriting evidence, showing courts will prioritise a fair hearing over strict procedure.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (Omange J) determined a Notice of Motion dated July 25, 2022 by the plaintiff, Jessica Murugi Murungi, seeking to reopen her case in a suit over LR 280/9 and to present the evidence of an expert witness to authenticate signatures on Sale Agreements dated June 11, 2012 and December 14, 2012. The plaintiff's case had been heard and closed; she explained she had been unable to trace a copy of the December 14, 2012 agreement, necessitating expert evidence she described as vital to confirming the validity of that agreement, which the defendant challenged. The defendant opposed, contending there was no valid reason to reopen, that no second agreement existed, and that the application sought to 'panel beat' the plaintiff's case after strong cross-examination. The court considered Order 18 Rule 10 of the Civil Procedure Rules, noting it applies to recalling witnesses already examined, not new witnesses, and distinguished authorities on both sides. Holding that reopening is an equitable, discretionary remedy exercised judiciously and sparingly, the court found no prejudice to the defendant, who could cross-examine the expert. The application was allowed: the plaintiff to file and serve the expert report within 30 days, the defendant to file responsive documents within 30 days of service, and the expert to be heard on the validity of the agreement only. Costs were in the cause.

Key legal issues

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01

Whether a case may be reopened to introduce a new (expert) witness after the plaintiff's case is closed

Holding

Yes - the court allowed reopening, finding the expert evidence vital and no prejudice to the defendant who may cross-examine.

Reasoning

Order 18 Rule 10 governs recall of witnesses already examined, not new witnesses, but the court retains a discretionary, equitable power to reopen a case. The plaintiff disclosed why she could not produce the agreement and the nature of the expert evidence. The court found reopening would not prejudice the defendant, who could cross-examine the expert, and that allowing parties to fully prosecute their cases meets the ends of justice.

p. 3

Legal principles established

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  • The court has a judicious and sparing discretion to reopen a case in appropriate circumstances to meet the ends of justice.

Court orders

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  1. 1.Plaintiff's application allowed to the extent that the plaintiff shall within 30 days file and serve a copy of the expert witness report or statement
  2. 2.Defendant at liberty to file and serve within 30 days of service any documents to be relied upon to counter this evidence
  3. 3.The expert witness to be presented for a hearing limited only to the validity of the agreement
  4. 4.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 18 Rule 10

Cases cited (6)

  • Raindrops Limited vs County of Kilifi

    Reopening of case / recall of witnesses

  • Victoria Kiminta vs Gladys Kiminta
  • Andrew Muganda and Others vs China Dalian International Group

    Reopening of case

  • Gulf Energy Limited vs East African Safari Air Express Limited
    [2020] eKLR

    Recall of witnesses who had previously testified

  • David Muthami Muthee vs Estate of James Titus Wambua and 4 Others
  • Joseph Ndungu Kamau v John Njihia
    [2017] eKLR

    Adducing additional evidence after both cases closed

Jurisdiction invoked
Inherent discretion of the Environment and Land Court; Order 18 Rule 10 of the Civil Procedure Rules

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, "Murungi v Cretum Properties Limited", Case Analysis (2023). Environment & Land Case 1395 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15766/eng@2023-02-22

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