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Case Brief · caselaw.co.ke
ELCAllowedEnvironment & Land Case E35 of 2021· [2023] KEELC 21027 (KLR)

Tutua v Kiptalam & 3 others

Environment and Land Court
26 October 2023
1,691 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court struck out three letters filed beyond the scope of an agreed leave, warning parties cannot sneak extra documents onto the record.

What this practically means

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Executive summary

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This ruling by FM Njoroge J of the Environment and Land Court at Nakuru determines a notice of motion dated 20/4/2023 by the plaintiff, Lucy Wanjiku Tutua, under Section 1B(1) and 3A of the Civil Procedure Act and Order 50 rule 1 of the Civil Procedure Rules, seeking to strike out and expunge three documents (letters dated 18/7/2022, 4/11/2022 and 9/11/2022) contained at pages 35 to 38 of the 1st and 2nd Defendants' Further List of Documents dated 9/3/2023. The defendants had earlier obtained leave on 8/3/2023, by consent, to amend their defence and counterclaim and to file additional documents exhibited to their application dated 2/2/2023. The plaintiff contended the three letters were 'alien' documents neither exhibited to that application nor covered by the leave granted, and were deceitfully sneaked onto the record. The 2nd defendant opposed, alleging bad faith. The court framed a single issue: whether the three letters should be struck out and expunged. Examining the record, the court found the impugned letters were not part of the bundle exhibited as 'Exhibit B' and held that the consent of 8/3/2023 covered only documents disclosed to the plaintiff at the time and was not a licence to file anything else. The court allowed the application in terms of prayer 1, struck out and expunged the three letters from the record, and ordered the 2nd and 4th defendants to bear the costs of the application.

Key legal issues

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01

Whether documents not exhibited to an application for leave to adduce additional evidence, and not covered by the leave granted, may remain on the court record

Holding

The three impugned letters were not part of Exhibit B and were not covered by the consent of 8/3/2023; they are improperly on record and were struck out and expunged.

Reasoning

The court examined the record and confirmed the three letters were not in the bundle exhibited as 'Exhibit B' to the supporting affidavit of the application dated 2/2/2023. The consent of 8/3/2023 covered only documents disclosed to the plaintiff at the time; it was not a licence to file any further documents. Documents outside that scope are irregularly on record and must be expunged.

p. 3

Legal principles established

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  • A consent granting leave to file additional evidence does not permit a party to file documents that were not the subject of the application for leave.
  • Documents not covered by the leave granted are improperly on record and liable to be expunged.

Court orders

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  1. 1.Prayer no. 1 of the plaintiff's application dated 20/4/2023 granted
  2. 2.Letter dated 18/7/2022 purportedly authored by the Agricultural Development Corporation addressed to Cheptumo & Co Advocates struck out and expunged from the court record
  3. 3.Letter dated 4/11/2022 purportedly addressed to the Agricultural Development Corporation by Cheptumo & Company Advocates struck out and expunged from the court record
  4. 4.Letter dated 9/11/2022 purportedly authored by the Directorate of Criminal Investigations and addressed to the Hon Attorney General struck out and expunged from the court record
  5. 5.Costs of the application to be borne by the 2nd and 4th defendants only

Authorities

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Legislation

  • Civil Procedure ActSection 1B(1)
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 50 rule 1
  • Civil Procedure RulesOrder 7 rule 5

Cases cited (18)

  • Preview Property Agency & another v Terrie Wanjiku Miano
    [2021] eKLR

    Leave requirement for filing additional documents

  • P.H Ogola Onyango t/a Pitts Consult Consulting Engineers vs Daniel Githegi t/a Quantalysis
    [2005] eKLR

    Leave requirement for filing additional documents

  • Johana Kipkemei Too v Hellen Tum
    [2014] eKLR

    Leave requirement for filing additional documents

  • Baseline Architects Limited & 2 others vs National Hospital Insurance Fund Board Management
    [2008] eKLR

    Illegally obtained documents

  • Susan Wariara Kariuki v Diakonie Katastrophenehife
    [2016] eKLR

    Illegally obtained documents

  • Jackline Chepkemoi Kimeto vs Shafi Grewal Kaka & 3 others
    [2019] eKLR

    Illegally obtained documents

  • Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others
    [2020] eKLR

    Illegally obtained documents

  • Njonjo Mue & another v Chairperson of Independent Electoral and Boundaries Commission
    [2017] eKLR

    Illegally obtained documents

  • Jumbo North (E.A) Limited v Martin Ratemo Nixon
    [2019] eKLR

    Documents accompanying amended pleadings

  • Moses Warui Gatimu v Douglas Mwai Machuru & Another
    [2018] eKLR

    Documents with amended pleadings; admissibility premature

  • Hangover Kaakwacha Hotel Ltd v Philip Adundo & Leonard Adundo t/a Hangover Kaakwacha Hotel
    [2022] eKLR

    Documents accompanying amended pleadings

  • Aniket Property & Investments Limited v Hamadi Juma Mwakibibo & 7 others
    [2018] eKLR

    Documents accompanying amended pleadings

  • Attorney General v Torino Enterprises Limited
    [2020] eKLR

    Admissibility premature at interlocutory stage

  • Michael Sergon v Joseph K. Kigen & 5 others

    Admissibility premature at interlocutory stage

  • Gabriel Macharia Njoroge v Land Registrar Murang'a Lands Office & another
    [2018] eKLR

    Admissibility premature at interlocutory stage

  • Ngomeni Swimmers Limited v Katana Chara Suleiman
    [2014] eKLR

    Admissibility premature at interlocutory stage

  • Evangeline Nyegera (Suing as the Legal Representative of Felix M'lkiugu alias M'ikiugu Jeremia M' Raibuni (Deceased) v Godwin Gachagua Gitui
    [2017] eKLR

    Admissibility premature at interlocutory stage

  • Director of Public Prosecutions v Tom Ojienda t/a Tom Ojienda & Associates Advocates & 3 others
    [2019] eKLR

    Admissibility premature at interlocutory stage

Jurisdiction invoked
Section 1B(1) and 3A of the Civil Procedure Act, Cap 21; Order 50 rule 1 of the Civil Procedure Rules; inherent power of the Court

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, "Tutua v Kiptalam & 3 others", Case Analysis (2023). Environment & Land Case E35 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21027/eng@2023-10-26

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