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ELCDismissedEnvironment & Land Case E002 of 2021· [2023] KEELC 18770 (KLR)
Muthoni (Suing as the legal representative of the Estate of Benjamin M'Mailutha Kailibi – Deceased) v Liungia & 2 others
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#What this practically means
#Executive summary
#The plaintiff, suing as legal representative of the estate of Benjamin M'Mailutha Kailibi (deceased), moved the court by notice of motion dated November 18, 2022 under sections 1A, 1B, 3A and 95 of the Civil Procedure Act and Order 18 Rule 10 of the Civil Procedure Rules, seeking leave to adduce additional evidence limited to production of a Limited Grant of Letters of Administration Ad Litem issued on August 5, 2021 in Tigania PMC Misc Succession Cause No E026 of 2021, and to file a further list of documents. She argued the evidence was directly relevant, necessary in the interest of justice to rebut the respondents' challenge to her status as legal representative, and would cause no prejudice. The respondents opposed, contending the plaintiff had annexed a Limited Grant from the High Court at Meru (Succession Cause 196 of 2015) when filing the originating summons, produced it and was cross-examined when she testified and closed her case on October 25, 2022; they argued the application was incompetent, intended to fill gaps and delay the defence hearing. Yano J framed one issue: whether the plaintiff satisfied the criteria for the court to exercise its discretion to re-open a case and receive additional evidence. Adopting the principles in Victoria Naiyanoi Kiminta v Gladys Kiminta Prinsloo, the court found inordinate and unexplained delay, lack of reasonable diligence, an intention to fill gaps in the plaintiff's evidence on a contested issue, likely prejudice to the respondents, and no probable important influence on the result. The motion was dismissed with costs to the respondents.
Key legal issues
#01
Whether the plaintiff should be allowed to re-open her case and adduce additional evidence
Holding
The application failed; the plaintiff did not meet the criteria for re-opening her case
Reasoning
The court applied the principles in Victoria Naiyanoi Kiminta v Gladys Kiminta Prinsloo, noting they apply disjunctively. The plaintiff gave no explanation for not filing the Limited Grant earlier, showed lack of reasonable diligence, and the evidence was aimed at filling gaps in her case on a contested issue, prejudicing the respondents. The grant was issued after the suit was filed and would not importantly influence the result.
p. 3
Legal principles established
#- The jurisdiction to re-open a case and receive additional evidence is discretionary and must be exercised judiciously, sparingly and with great caution
- A party will not be allowed to introduce new evidence to patch up weak points or fill gaps in its case
Court orders
#- 1.The notice of motion dated November 18, 2022 is dismissed
- 2.Costs of the application awarded to the respondents
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 95 of the Civil Procedure Act; Order 18 Rule 10 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthoni (Suing as the legal representative of the Estate of Benjamin M'Mailutha Kailibi – Deceased) v Liungia & 2 others", Case Analysis (2023). Environment & Land Case E002 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18770/eng@2023-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.