Tutua v Kiptalam & 3 others
The bottom line
#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
#Executive summary
#Key legal issues
#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
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.
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.
Legal principles established
#- 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
#- 1.Prayer no. 1 of the plaintiff's application dated 20/4/2023 granted
- 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.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.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.Costs of the application to be borne by the 2nd and 4th defendants only
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.