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ELCPartially AllowedEnvironment & Land Case E34 of 2021· [2023] KEELC 19978 (KLR)
Tutua v Kipkulei & 2 others; Agricultural Development Corporation (Third Party)
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·~13 min to read original · ~4 min briefThe bottom line
#A Nakuru court allowed some late documents in a land dispute but refused letters created during the case, warning against influencing litigation.
What this practically means
#Executive summary
#This ruling by FM Njoroge, J of the Environment and Land Court at Nakuru determines a Notice of Motion dated 15/03/2023 by the 1st and 2nd defendants seeking leave to file additional documents in support of their defence and counterclaim, and leave for the 1st defendant to file a witness statement. The documents sought were the 1st defendant's witness statement, copies of Kenya Gazette notices from 2004, a letter dated 18/07/2022 from the Agricultural Development Corporation to Cheptumo & Co. Advocates, a letter dated 04/11/2022 from Cheptumo & Co. Advocates to the Corporation, and a letter dated 9/11/2022 from the Directorate of Criminal Investigations to the Attorney General. The plaintiff opposed only the three 2022 letters, contending they were confidential, privileged and illegally obtained in breach of Articles 31 and 35 of the Constitution and the Evidence Act, and that their admission would render the trial unfair. The defendants argued the court had discretion to admit the documents, that they went to the root of ownership of the suit properties, and that admissibility could only be determined at trial. The court framed a single issue: whether leave should be granted. Applying Order 2 Rule 13 and Order 7 Rule 5, and the exceptional-circumstances test in Johana Kipkemei Too v Hellen Tum as adopted in Mansukhalal Jesang Maru v Frank Wafula, the court held that additional documents are allowable only where beyond the party's control. On the basis of the plaintiff's concession, it allowed the witness statement and Gazette copies, but refused the three letters because they were created in 2022 while the suit was pending and risked influencing the litigation and prejudicing the plaintiff. The application was partially allowed, with each party bearing its own costs and further directions set for 18/10/2023.
Key legal issues
#01
Whether leave should be granted to file additional documents in support of defence and counterclaim
Holding
Partially allowed: witness statement and Kenya Gazette copies admitted; the three 2022 letters excluded
Reasoning
The court applied Order 2 Rule 13 and Order 7 Rule 5 requiring documents to accompany pleadings, and the exceptional-circumstances test from Johana Kipkemei Too v Hellen Tum. The plaintiff conceded the Gazette copies and witness statement. The three letters were written in 2022 while the suit was pending, were not shown to be beyond the defendants' control, and admitting them risked prejudice and delay. The court adopted its own reasoning in ELC 43 of 2021 and excluded the letters.
p. 6
Legal principles established
#- Leave to file additional documents is granted only in exceptional circumstances where the documents were beyond the party's control and could not with due diligence have been in their possession
- Courts must be wary of attempts to influence litigation through documents created after suit is filed
Court orders
#- 1.A supplementary list and bundle of documents comprising only of the 1st defendant's witness statement and the copies of the Kenya Gazette dated 20/02/2004, 22/10/2004 and 30/04/2004 shall be filed and served within 14 days
- 2.Each party shall bear its own costs of the application
- 3.Parties to appear before the court virtually on 18/10/2023 for further directions as to hearing
- Jurisdiction invoked
- Inherent jurisdiction under sections 1A, 1B and 3A of the Civil Procedure Act and Order 7 rule 5(d), 18, 20 rules 3 & 5 and Order 51 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tutua v Kipkulei & 2 others; Agricultural Development Corporation (Third Party)", Case Analysis (2023). Environment & Land Case E34 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19978/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.