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ELCDismissedEnvironment & Land Case 10 of 2019· [2023] KEELC 18893 (KLR)

Koloi & 4 others v Lokwee & 2 others

Environment and Land Court
18 July 2023
FNFred Nyagaka
4,493 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to let defendants pull in a police investigation report mid-trial, ruling it a fishing expedition that would unfairly prejudice plaintiffs who had already closed their case.

What this practically means

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Executive summary

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The Defendants in a land dispute suit brought a Notice of Motion dated 23/02/2023 seeking orders directing the Directorate of Criminal Investigations, Loima Sub-County, to file and produce in court its investigation report in respect of Criminal Case No. 170 of 2020, arising from the 1st Defendant's arrest after selling the suit property to the 2nd Defendant, and permitting cross-examination of the Investigations Officer. The application was supported by an affidavit of John Loolio Kaaman, who annexed the DCI report. The Plaintiffs filed written submissions referring to a replying affidavit sworn on 06/03/2023, but the court found no such affidavit had actually been filed. The court framed three issues: whether the application was properly opposed; whether the Defendants should be allowed to introduce new evidence; and costs. On the first issue, applying Order 51 Rule 14 and the Supreme Court decision in Konchellah v Sunkuli, the court held that submissions alone cannot oppose an application, so the application stood uncontroverted - but it still had to be tested on its merits. On the merits, applying the principles in Susan Wavinya Mutavi v Isaac Njoroge and Peter Kirika Githaiga v Betty Rashid, the court held the application was a fishing expedition: the applicants showed no diligence or refusal by the DCI, the DCI is not a party and cannot be compelled to produce evidence, and allowing the application would prejudice the Plaintiffs who had closed their case. The application was dismissed with costs to the Plaintiffs, and the suit was directed to be mentioned on 19/09/2023 for fixing a hearing date for the defence case.

Key legal issues

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01

Whether the application was properly opposed

Holding

The Plaintiffs did not file any of the documents contemplated by Order 51 Rule 14; their written submissions, referring to an unfiled replying affidavit, amounted to nothing and the application was deemed uncontroverted.

Reasoning

Order 51 Rule 14 permits opposition by preliminary objection, replying affidavit or grounds of opposition. The Plaintiffs filed none, and no replying affidavit appeared on the court file or the e-filing system. Following Konchellah v Sunkuli, submissions without a replying affidavit are of no effect, so the application stood uncontroverted.

p. 5
02

Whether the Defendants should be allowed to introduce the DCI investigation report as new evidence after the Plaintiffs closed their case

Holding

No. The evidence could have been obtained with reasonable diligence, no proof of refusal by the DCI was adduced, and the application was a fishing expedition that would prejudice the Plaintiffs.

Reasoning

Applying the principles in Susan Wavinya Mutavi v Isaac Njoroge, the court found the applicants did not show the report could not have been obtained with reasonable diligence, nor that the DCI refused to avail it. The report was conveniently sought after the close of the plaintiffs' case; compelling the DCI, a non-party, would descend into the arena of conflict contrary to Peter Kirika Githaiga.

p. 7
03

Costs of the application

Holding

Costs awarded to the Plaintiffs/Respondents as costs follow the event under Section 27(1) of the Civil Procedure Act.

Reasoning

Section 27(1) provides that costs follow the event unless the court for good reason decides otherwise. The court saw no good reason to depart from that position, particularly because the court had been used to determine a frivolous application.

p. 8

Legal principles established

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  • A respondent opposing an application must file a notice of preliminary objection, replying affidavit or grounds of opposition; written submissions alone do not amount to opposition.
  • An unopposed application is not automatically allowed; the court must still satisfy itself that it is meritorious on the merits.
  • The DCI, not being a party to a civil suit, cannot be compelled to produce evidence for a party; the proper course is to call the maker of the report as a witness.
  • A trial should not be used as a fishing ground for new evidence to fill gaps; only evidence that could not reasonably have been obtained with due diligence may be admitted on re-opening.

Court orders

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  1. 1.The Defendants' Notice of Motion dated 23/02/2023 is dismissed.
  2. 2.Costs of the application granted to the Plaintiffs/Respondents.
  3. 3.Suit to be mentioned on 19/09/2023 for fixing a hearing date for the defence case.

Authorities

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Legislation

  • Environment and Land Court ActSections 13(1), 19(1), (2) and (3)
  • Evidence ActSection 146(4)
  • Civil Procedure Rules, 2010Order 51 Rule 14
  • Civil Procedure Rules, 2010Order 7 Rule 5
  • Civil Procedure Rules, 2010Order 3 Rule 2
  • Civil Procedure Rules, 2010Order 11
  • Civil Procedure ActSection 27(1)

Cases cited (11)

  • Samuel Kiti Lewa Vs Housing Finance Cooperation of Kenya Ltd & Ano (2015)

    Discretion of the court in reopening a case, to be exercised judiciously without embarrassing or prejudicing the opposite party.

  • Raindrops Ltd Vs County Government of Kilifi (2020) eKLR

    Cited as the case in which Samuel Kiti Lewa was cited on reopening a case.

  • Odoyo Osodo Vs. Rael Obara Ojuok & 4 Others (2017) eKLR

    Sufficient reasons for grant of orders admitting additional evidence not obtainable with reasonable diligence.

  • Harrison C. Kariuki -vs- Blue Shield Insurance Co. Ltd 2006 eKLR

    Late amendments occasioning prejudice that cannot be made good by costs.

  • Peter Kirika Githaiga & Another V. Betty Rashid 2016 eKLR

    Court should not assist parties in fishing for, gathering or retrieving evidence; DCI report maker can be called as a witness.

  • Fredrick Kigwa Odulah v Titus Wanyonyi Wasianju [2019] eKLR

    Approved the reasoning in Peter Kirika Githaiga.

  • Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 Others [2018] eKLR

    Submissions filed absent a replying affidavit are of no effect.

  • Mansukhalal Jesang Maru v Frank Wafula [2021] eKLR

    The bar for filing additional documents after pre-trial should be very high, higher than fifty-fifty.

  • Johana Kipkemei Too v Hellen Tum [2014] eKLR

    Evidence must be furnished with pleadings; Orders 3 and 7 curb trials by ambush.

  • Raila Odinga & 5 Others v IEBC and 3 Others (2013) eKLR

    Discretion to admit further evidence depends on nature and extent of the new material and fair playing field.

  • Susan Wavinya Mutavi v Isaac Njoroge & another [2020] eKLR

    Six principles governing jurisdiction to re-open a case and receive additional evidence.

Jurisdiction invoked
Sections 13(1) and 19(1), (2) and (3) of the Environment and Land Court Act, 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Koloi & 4 others v Lokwee & 2 others", Case Analysis (2023). Environment & Land Case 10 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18893/eng@2023-07-18

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