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ELCAllowedEnvironment & Land Case 62 of 2019· [2023] KEELC 20443 (KLR)

Onyango v Mbito & 2 others

Environment and Land Court
4 October 2023
FNFred O. Nyagaka
4,410 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 allowed a defendant to file key documents late, but only because the other side got a fair chance to respond.

What this practically means

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Executive summary

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By Notice of Motion dated June 8, 2023, the 1st Defendant in Environment & Land Case 62 of 2019 (Kitale) sought leave to file a supplementary witness statement and further list of documents, including a Provisional Certificate of Title central to his counterclaim, after the Plaintiff had closed his case. The Plaintiff opposed, arguing the application was an afterthought, that no medical evidence proved the alleged illness, and that allowing new evidence after closure of his case would prejudice his right to a fair trial under Article 50(1). The Applicant relied on Article 50 and 159 of the Constitution and authorities on additional evidence, including the due-diligence and probative-value test in Victoria Naiyanoi Kiminta and the principle in Ainu Shamsi Hauliers that a court should not deprive itself of relevant information. The Respondent relied on Sendy Kenya Freight, Johana Kipkemei Too, Sumba and Mansukhalal Maru. Nyagaka J framed two issues: merit and costs. Construing Order 7 Rule 5, the court held documents must be filed with the pleadings, but found the Applicant had shown sufficient reasons for the delay: the documents were not in his custody at filing, they constituted new and compelling evidence going to the root of his defence, and his documented illness, acknowledged on the record, impaired his preparation. Weighing prejudice, the court held the lesser prejudice lay in allowing the documents while reopening the Plaintiff's case solely to rebut them. The application was allowed; the Plaintiff was given ten days to file rebuttal evidence, costs were in the cause, and the matter was set for mention on October 31, 2023.

Key legal issues

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01

Whether the 1st Defendant should be granted leave to file a supplementary witness statement and further documents after the Plaintiff closed his case

Holding

Application allowed; the documents go to the root of the defence, were not in the Applicant's custody at filing, and the Applicant's illness explains the delay; the Plaintiff's case is reopened solely to rebut the new evidence.

Reasoning

The court found the Applicant gave sufficient reasons for the late filing: the documents were not in his custody when the suit was filed, they constitute new and compelling evidence going to the root of his title, and his documented illness (including treatment abroad) impaired his ability to organize his defence. The court weighed the prejudice to the Plaintiff, who had closed his case, against the prejudice of permanently locking out the Defendant's core documents, and concluded the lesser prejudice lies in reopening the Plaintiff's case on a limited basis.

02

Whether documents may be filed later than the stage prescribed by Order 7 Rule 5 of the Civil Procedure Rules

Holding

Documents ought to be filed with the pleadings; the proviso allowing late filing applies only to witness statements, not documents.

Reasoning

The court construed Order 7 Rule 5, noting that while witness statements may, with leave, be furnished at least fifteen days before the trial conference, there is no equivalent provision for late filing of documents, which must accompany the defence and counterclaim. This strict reading was nonetheless tempered by the court's discretion in the circumstances of the case.

p. 5

Legal principles established

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  • A court may permit late filing of documents where they constitute new and compelling evidence going to the root of a party's case, provided the opposing party is given an opportunity to rebut them.
  • In weighing an application to add further evidence after the close of the opposing party's case, the court must balance the prejudice to both sides and grant the lesser prejudice.

Court orders

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  1. 1.Leave granted to the 1st Defendant to file a supplementary witness statement attaching a further list of documents
  2. 2.The Supplementary Witness Statement and List of Documents deemed duly filed and served upon payment of court fees
  3. 3.The Plaintiff's case reopened only for purposes of availing evidence limited to rebutting the new evidence to be filed by the Applicant
  4. 4.Applicant to file the Supplementary Witness Statement and List of Documents within ten (10) days of the Order and serve within that period
  5. 5.Defendant (Plaintiff) to have ten (10) days to file any rebuttal evidence
  6. 6.Costs in the cause
  7. 7.Mention on October 31, 2023 for further directions

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 22, 63(e)
  • Civil Procedure RulesOrder 3 Rule 2, Order 3 Rule 7, Order 7 Rule 5, Order 11
  • Constitution of KenyaArticles 50, 50(1), 159

Cases cited (9)

  • Republic V District Land Registrar, Uasin Gishu & Another
    (2014) eKLR

    Justice is about doing the right thing

  • St. Patrick's Hill School Limited v Bank of Africa Kenya Limited
    [2018] eKLR

    Each party should be afforded a fair trial with opportunity to prosecute or defend its case

  • Hangover Kaakwacha Hotel Ltd v Philip Adundo & Leonard Adundo T/A Hangover Kaakwacha Hotel
    [2022] eKLR

    Documents obtained after filing but before hearing admitted where no prejudice demonstrated

  • Victoria Naiyanoi Kiminta v Gladys Kiminta Prinsloo
    [2019] eKLR

    Test for additional evidence: due diligence, important influence on result, apparent credibility

  • Ainu Shamsi Hauliers Limited Versus Anastacia Ndinda Mwanzia (suing as Administrator of the Estate of Harrison Mwendwa Karili)
    Civil Appeal No. 13 of 2018 [2018] eKLR

    A court should not deprive itself of information that would assist it reach a fair finding

  • Sendy Kenya Freight Limited v Multiple Solutions Limited
    [2021] eKLR

    Refusal of defendant's application for additional evidence after plaintiff closed case where defendant had opportunity to file in time

  • Johana Kipkemei Too v Hellen Tum
    [2014] eKLR

    Great prejudice where defendant's application allowed after close of plaintiff's case without opportunity to rebut

  • Alois Oceans P. Sumba v Rajnikoini Narshi Shah and Anor
    [2017] eKLR

    Documents not forming new and compelling evidence were disallowed

  • Mansukhalal Jesang Maru v Frank Wafula
    [2021] eKLR

    Distinguished: applicant there had possession of documents sought to be introduced at the late stage

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution; application brought under Sections 1A, 1B, 3, 22 and 63(e) of the Civil Procedure Act, Order 11 of the Civil Procedure Rules and Article 50 of the Constitution

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, "Onyango v Mbito & 2 others", Case Analysis (2023). Environment & Land Case 62 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20443/eng@2023-10-04

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