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ELCDismissedEnviromental and Land Originating Summons E002 of 2022· [2023] KEELC 21019 (KLR)

Redeemed Gospel Church Kwale v Norman Njuguna Nganga

Environment and Land Court of Kenya
26 October 2023
3,298 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to let a defendant add new witnesses late in trial, ruling that courts will not tolerate litigation by ambush.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kwale (A. E. Dena, J) determined the defendant's application dated 29/03/2023 seeking leave to file a supplementary list of witnesses and two witness statements (Benard Mbire Kihiu and Patrick Mcharo), to have them deemed properly filed, and for service on the plaintiff. The defendant attributed the late filing to the court's failure to sit on 31/10/2022 for pre-trial directions, invoking the overriding objective (Sections 1A and 1B of the Civil Procedure Act), Order 50 on enlargement of time, and Article 50(1) on fair hearing. The plaintiff opposed, contending the application was an afterthought designed to patch holes in the defence case after the plaintiff had closed its case on 30/01/2023, and that one proposed witness (the defendant's husband) had been available all along. The court found the registry had remained operational despite the court's non-sitting, that parties had been recorded as compliant on 10/11/22, and that the proposed statements introduced new matters concerning a 2019 fence construction on the suit property, absent from earlier filings, with one paragraph responding to issues arising during the hearing. Guided by the authorities on additional evidence, the court held the introduction would prejudice the plaintiff's adverse possession claim and that the defendant sought to seal loopholes after consuming the proceedings. The application was dismissed with costs to the plaintiff.

Key legal issues

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01

Whether leave should be granted to introduce additional witnesses after closure of the plaintiff's case

Holding

The application was dismissed; the proposed evidence was a material departure aimed at bridging gaps in the defence case and would prejudice the plaintiff's adverse possession claim

Reasoning

The court reviewed the proposed witness statements against the pleadings and prior statements. The fence issue was new and absent from earlier filings, and one paragraph responded to matters arising during the hearing. The court concluded the defendant, having heard the plaintiff's evidence, sought to strengthen his case, which would prejudice the plaintiff who had closed its case and could not rebut the new evidence.

p. 6
02

Whether the court's failure to sit on 31/10/2022 excused the late filing

Holding

No; the registry remained operational and the delay could not be attributed to the court

Reasoning

The court record showed that on 10/11/22 the parties were noted to have complied with Order 11 and Order 7 rule 5, with no reaction from defence counsel. The explanation that the defendant resided in Nairobi and the witnesses in Kwale was unsupported by the affidavit. Disclosure of the additional witnesses came months after the suit commenced, so the court's non-sitting was not a justifiable reason.

p. 4
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The applicable test for admitting additional evidence during trial

Holding

The court must inquire into the relevance, materiality, admissibility and strength of the evidence and the prejudice to the other party; prejudice increases as the trial progresses

Reasoning

Relying on Raila Odinga v IEBC as cited in Pinnacle Projects, and on Johana Kipkemei Too v Hellen Tum, the court held that while a court may permit additional evidence where no undue prejudice is caused, the prejudice to the other party increases as the trial progresses, and here the plaintiff had already closed its case.

p. 6

Legal principles established

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  • Substantive justice cannot be achieved where peremptory procedural rules governing the conduct of litigation are disregarded
  • A litigant cannot attribute failure to file witness statements in time to the court's failure to sit where the registry remained operational and disclosure was made months later

Court orders

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  1. 1.The defendant's application dated 29/03/2023 is dismissed
  2. 2.Costs of the application to the plaintiff

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure Rules, 2010Order 3 Rule 7
  • Civil Procedure Rules, 2010Order 5
  • Civil Procedure Rules, 2010Order 7 Rule 5
  • Civil Procedure Rules, 2010Order 11
  • Civil Procedure Rules, 2010Order 18 Rule 10
  • Civil Procedure Rules, 2010Order 50
  • Evidence ActSection 146

Cases cited (9)

  • Alex Wainaina t/a John Commercial Agencies v Janson Mwangi Wanjihia
    (2015) eKLR

    Court as shrine of justice not strictly bound by procedural technicalities

  • Dennis Edmond Apaa and 2 Others v Ethics and Anti-Corruption Commission & another
    Petition No. 317 of 2012

    Power to recall a witness; right to admit additional evidence not limited by closure of pleadings

  • David Sugut & another v Mercela Cheptoo Chuma
    (2016) eKLR

    Discretion of the court invoked upon justifiable reason

  • Said Sweilem Gheithan Saanum v Commissioner of Lands (being sued through Attorney General) & 5 Others
    (2015) eKLR

    Parties who flout litigation rules should suffer consequences of breach

  • George Kimani Njuki v National Land Commission & 2 Others
    (2022) eKLR

    Filing rules bar litigation by ambush; allowing new witnesses after closure of plaintiff's case causes prejudice

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

    Court's inquiry into relevance, materiality, admissibility and strength of additional evidence

  • Pinnacle Projects Limited v Presbyterian Church of East Africa Ngong Parish & another

    Nyakundi J's statement on admission of additional evidence not served during pre-trial

  • Johana Kipkemei Too v Hellen Tum
    (2014) eKLR

    Court retains power to disallow evidence not provided to the other party; prejudice increases as trial progresses

  • Raila Odinga & 5 Others v IEBC & 3 Others
    Supreme Court of Kenya, Petitions Nos. 3,4 and 5 of 2013 (2013) eKLR

    Supreme Court declined additional evidence filed outside the contemplation of the rules

Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2) of the Constitution (not expressly stated in the ruling); application brought under Sections 1A and 1B of the Civil Procedure Act and Order 50 of the Civil Procedure Rules

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, "Redeemed Gospel Church Kwale v Norman Njuguna Nganga", Case Analysis (2023). Enviromental and Land Originating Summons E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21019/eng@2023-10-26

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