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ELCDismissedEnvironment and Land Case 001 of 2021 (Formerly Chuka ELC Case No. 6 of 2019)· [2023] KEELC 21977 (KLR)

Chebril (suing as the administrator of the estate of Asha Jabril Mohammed (Deceased) v Mburugu & 6 others

Environment and Land Court at Isiolo
4 December 2023
PNP.M. Njoroge
2,705 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to let a land claimant add new evidence seven years into her case, ruling review cannot patch up gaps.

What this practically means

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Executive summary

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This ruling by P.M. Njoroge, J of the Environment and Land Court at Isiolo disposed of the plaintiff's application dated 28th August 2023, brought under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. The plaintiff, suing as administrator of the estate of Asha Jabril Mohammed, sought review, setting aside and/or variation of the court's ruling and order of 26th July 2023, and leave to recall her witness or the Assistant Land Administrator, Mr Simiyu, to produce documents filed by the Attorney General on 26th July 2023. The application was canvassed orally. The plaintiff's advocate relied on eight authorities, including the Supreme Court's Mohamed Abdi Mohamed criteria for additional evidence, arguing the documents were public records only discovered when the Attorney General filed them and that no prejudice would ensue since defendants could cross-examine. The 1st, 2nd and 3rd defendants opposed, contending the application was a second bite at the cherry, an abuse of process tantamount to the court sitting on its own appeal, and an attempt to patch up gaps after all parties had testified and closed cases and final submissions were filed. The Attorney General and the National Land Commission supported the application. The court declined to consider an affidavit filed by the Attorney General on the hearing day without service or leave. Finding that the suit had taken an inordinately long time since 2017, that the plaintiff had not demonstrated due diligence or that the 26th July 2023 ruling was not judicious, and that admitting the evidence would restart the hearing and mortally prejudice the defendants, the court dismissed the application and awarded costs to the 1st, 2nd and 3rd defendants.

Key legal issues

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01

Whether the ruling of 26th July 2023 was made judiciously

Holding

The court found the ruling was made judiciously and in accordance with legal tenets; the applicant failed to persuade otherwise

Reasoning

The court had already dismissed an oral application by the 4th, 5th and 6th defendants to introduce new evidence after the plaintiff and 1st to 3rd defendants had testified and closed their cases, with reasons given. The plaintiff, who now sought the same indulgence, did not demonstrate any error or failure of judicial discretion in that ruling.

p. 6
02

Whether the new documents satisfied the criteria for admission of additional evidence on review

Holding

The plaintiff failed to show due diligence; the documents were public documents she could have obtained earlier, and admitting them would prejudice the defendants

Reasoning

The plaintiff admitted the documents were public records of the 4th defendant, meaning she could with reasonable diligence have obtained them before trial. The affidavit did not show what due diligence was conducted. Admitting them seven years into the suit would force the 1st to 3rd defendants to recast their defences, causing mortal prejudice.

p. 6
03

Whether the application was an attempt to have the suit heard afresh

Holding

The court found the application contrived to patch up gaps in the plaintiff's suit and effectively sought a fresh hearing

Reasoning

Filed after an earlier similar application was dismissed and after final submissions were filed, the application sought to reopen the hearing almost seven years after filing. The court viewed this as an attempt to patch up gaps and restart the case, which review jurisdiction does not permit.

Legal principles established

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  • Review cannot be used to introduce fresh evidence to patch up omissions in a case after parties have closed their cases
  • A party seeking to adduce additional evidence must demonstrate due diligence in obtaining it for the trial

Court orders

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  1. 1.This application is dismissed
  2. 2.The court declined to hear the Attorney General's application which supported the plaintiff's application
  3. 3.Costs awarded to the 1st, 2nd and 3rd defendants

Authorities

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Legislation

  • Evidence ActSection 35(4)
  • Civil Procedure ActSection 22
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45
  • Constitution of Kenyafair hearing rights (as invoked by parties)

Cases cited (8)

  • Mohamed Abdi Mohamed v Ahmed Abdullahi Mohamed and 3 Others
    [2018] eKLR

    Criteria and guidelines for admission of additional evidence

  • IEBC v Robert K Nyengi
    (2015) eKLR
  • E.O v C.O.O
    [2020] eKLR

    Review rule not intended to enable a litigant to patch up omissions in his case

  • Wadhwa (As Legal Representative of the Estate of Deshpal Omprakash Wadhwa) v Mohamed & 4 others
    (2022) KECA (KLR)
  • Otieno, Ragot & Company Advocates v National Bank of Kenya
    (2020) eKLR
  • Sylvester Nthenge v Johnstone Kiamba Kiswili
    (2021) eKLR
  • Shanzu Investment Ltd v Commissioner of Lands
    (1993) eKLR
  • James Bosire Machogu v Brian Kipkemboi Kirui
    [2022] eKLR

    A review cannot be asked merely for fresh hearing or corrections

Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court; review under Section 80 of the Civil Procedure Act and Order 45 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, "Chebril (suing as the administrator of the estate of Asha Jabril Mohammed (Deceased) v Mburugu & 6 others", Case Analysis (2023). Environment and Land Case 001 of 2021 (Formerly Chuka ELC Case No. 6 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21977/eng@2023-12-04

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