Redeemed Gospel Church Kwale v Norman Njuguna Nganga
The bottom line
#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
#Executive summary
#Key legal issues
#Whether leave should be granted to introduce additional witnesses after closure of the plaintiff's case
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
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.
Whether the court's failure to sit on 31/10/2022 excused the late filing
No; the registry remained operational and the delay could not be attributed to the court
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.
The applicable test for admitting additional evidence during trial
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
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.
Legal principles established
#- 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
#- 1.The defendant's application dated 29/03/2023 is dismissed
- 2.Costs of the application to the plaintiff
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.