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ELCDismissedEnvironment & Land Case 132 of 2015· [2023] KEELC 20839 (KLR)

Soy Developers Limited v Kenagri Products Ltd & 4 others

Environment and Land Court
19 October 2023
OAO. A. Angote
3,442 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to let a party re-open its case to produce documents it had all along but chose not to use.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (O. A. Angote J) determined a notice of motion dated July 4, 2023 by the 3rd defendant, ASL Limited, seeking leave to re-open its case and recall its director, Kartik Patel (DW8), to produce two letters of April 27, 2005 and May 16, 2005 from T.R. Consult Limited. The application was brought under section 146(4) of the Evidence Act and Order 18 rule 10 of the Civil Procedure Rules. The 3rd defendant argued the letters would assist the court on how T.R. Consult communicated the sale of the suit property, and that Mohamed Abdi Mahamud was distinguishable as concerning a second appeal. The plaintiff opposed, contending the application sought to seal loopholes exposed in cross-examination, that the letters were in the 3rd defendant's exclusive possession, and that they were inadmissible under section 3(3) of the Law of Contract Act and section 71 of the Evidence Act. The 1st and 5th defendants also opposed, citing prejudice and unverified authenticity. The court distilled the settled principles: no inordinate unexplained delay; the evidence would probably influence the result; it could not have been obtained with reasonable diligence; and the re-opening must not fill gaps. Finding the letters were always in the 3rd defendant's possession, had been filed in an earlier suit (Darelle Limited v ASL Limited), and that non-production was deliberate and tactical, and that their probative value was low, the court dismissed the application with costs to the plaintiff, the 1st and 5th defendants.

Key legal issues

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01

Whether the 3rd defendant satisfied the criteria for re-opening its case and adducing additional evidence

Holding

The application failed: the letters were in the applicant's possession all along, their non-production was deliberate, and the application was aimed at filling gaps in evidence after cross-examination

Reasoning

The court distilled the test for re-opening: no inordinate unexplained delay; the evidence would probably influence the result; it could not have been obtained with reasonable diligence; and the re-opening must not be to fill gaps. The letters were in the 3rd defendant's exclusive possession and had even been filed in an earlier suit, so non-production was deliberate. Their probative value was also low. The application was therefore dismissed.

p. 6

Legal principles established

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  • Re-opening a case will not be allowed where the failure to adduce the evidence was deliberate
  • Re-opening is an extreme measure to be allowed sparingly and not where evidence was withheld as a tactical decision

Court orders

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  1. 1.The 3rd defendant's application dated July 4, 2023 is dismissed
  2. 2.Costs of the application to the Plaintiff, the 1st and 5th defendants

Authorities

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Legislation

  • Evidence Actsection 146(4)
  • Civil Procedure RulesOrder 18 rule 10
  • Law of Contract Actsection 3(3)
  • Evidence Actsection 71

Cases cited (13)

  • Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others
    [2018] eKLR

    Criteria for production of additional evidence; distinguished by applicant as concerning a second appeal

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

    Principles governing re-opening of a case and receipt of additional evidence in a civil trial

  • Mzee Wanjie & 93 others v A K Saikwa & 3 others
    (1982-88) 1 KAR

    Additional evidence must likely affect the result and could not have been obtained with reasonable diligence

  • Cooley v Edwards
    [1982] NLJ 247

    New evidence must not be obtainable with reasonable diligence and must be of weight likely to affect the decision

  • Sudan Relief Rehabilitation Association also known as Sudan Relief Rehabilitation Commission & 3 others v Citi Bank NA
    [2015] eKLR

    Cogent reasons required for re-opening; re-opening must not be to seal a loophole

  • Raindrops Limited v County Government of Kilifi
    [2020] eKLR

    Re-opening is an extreme measure allowed sparingly; not permitted where withholding was tactical

  • Nakuru Automobile House Ltd v Lawrence Maina Mwangi & another
    [2017] eKLR

    Reopening will not normally be allowed if failure to adduce evidence was deliberate

  • Darelle Limited Plaintiff v ASL Limited & 2 others
    [2015] eKLR

    Earlier suit (Nairobi ELC Case No. 24 of 2008) in which the two letters were allegedly produced

  • Ladd v Marshall
    (1954) 3 All ER 745
  • Reid v Brett
    [2005] VSC 18
  • Smith v New South Wales Bar Association
    (1992) 176 CLR 256
  • EB v CT (No 2)
    [2008] QSC 306
  • Samuel Kiti Lewa v Housing Finance Company of Kenya Limited & another
    (2015) eKLR
Jurisdiction invoked
Section 146(4) of the Evidence Act and 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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Later judgments citing this (1)

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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, "Soy Developers Limited v Kenagri Products Ltd & 4 others", Case Analysis (2023). Environment & Land Case 132 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20839/eng@2023-10-19

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