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ELCPartially AllowedEnvironment & Land Case 104 of 2022· [2023] KEELC 22031 (KLR)

Al-Maddy v Ali & 4 others

Environment and Land Court
29 November 2023
896 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Mombasa court refused to hand original documents to either side in a land dispute, ordering both parties to agree on a neutral forensic examiner instead.

What this practically means

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Executive summary

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This interlocutory ruling by N.A. Matheka J in the Environment and Land Court at Mombasa determines a notice of motion dated 11 July 2023 brought by the 1st to 4th defendants under Sections 1A and 3A of the Civil Procedure Act. The applicants sought setting aside of directions issued on 5 June 2023, which required them to furnish the plaintiff with original documents for forensic scrutiny, and alternatively an order that the parties agree on a mutual forensic examiner. They contended the directions were issued without considering instructions given to counsel holding brief, and that handing original documents to the plaintiff would render their defence nugatory given fears of tampering or loss. The plaintiff/respondent opposed, arguing the application offended res judicata, that the applicants were in contempt of the 5 June 2023 orders, and that they merely wished to manipulate and control the scrutiny process. The court perused the record, confirmed the 5 June 2023 order, and observed the distrust between the parties. Rather than setting aside the directions, it directed the parties to agree on a mutual forensic examiner within 7 days, with the documents to be released to the examiner, failing which the court would appoint one. Costs of the application were placed in the cause. The ruling is a short case-management decision prioritising progression of the suit to its logical conclusion.

Key legal issues

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01

Review/setting aside of case management directions given on 5 June 2023

Holding

The court declined to set aside the directions wholesale but adjusted the mechanism for forensic examination by directing a mutual examiner agreed within 7 days, default court appointment

Reasoning

The court perused the record and confirmed the 5 June 2023 order requiring the 1st to 4th defendants to furnish original documents for scrutiny. Noting distrust between the parties and the applicants' apprehension that documents might be tampered with or lost if handed to the plaintiff, the court balanced the need to progress the suit to its logical conclusion with protecting the defence case, adopting a neutral examiner mechanism rather than setting aside or affirming the earlier directions outright.

p. 2
02

Respondent's objection based on res judicata and contempt of the 5 June 2023 orders

Holding

The court did not expressly rule on the res judicata or contempt objections, instead issuing practical directions to unblock the impasse

Reasoning

The plaintiff/respondent argued the application offended res judicata since directions were issued on 5 June 2023 on the same issue, and that the applicants were in contempt for refusing to release original documents. The court did not pronounce on these objections in its brief ruling; it simply noted the record and the distrust between the parties and issued compromise directions, effectively bypassing the preliminary objections raised.

p. 2

Legal principles established

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  • Where parties exhibit mutual distrust over original documents, the court may direct them to agree on a mutual forensic examiner, with the documents released to the examiner rather than to a party, failing which the court will appoint one

Court orders

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  1. 1.The plaintiff and the 1st, 2nd, 3rd and 4th defendants are directed to agree on a mutual forensic examiner within the next 7 days and the documents to be released to them, in default the court to decide on one
  2. 2.The costs of the application to be in the cause
Jurisdiction invoked
Section 1A and 3A of the Civil Procedure Act (inherent power to issue case management directions)

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, "Al-Maddy v Ali & 4 others", Case Analysis (2023). Environment & Land Case 104 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22031/eng@2023-11-29

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