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ELCOtherNot stated in the judgment· [2024] KEELC 751 (KLR)

Kayoyo Investment Limited v Nesclay Limited & 7 others (Environment & Land Case E006 of 2022) [2024] KEELC 751 (KLR)

Environment and Land Court
13 February 2024
1,163 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that objections to trial documents must be raised before trial—late objections won't stop relevant evidence being produced.

What this practically means

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Executive summary

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This is a first-instance interlocutory ruling by Lucy N. Mbugua, Judge of the Environment and Land Court at Nairobi, delivered on 13 February 2024, determining an evidentiary objection arising mid-trial. During the evidence-in-chief of the plaintiff's first witness in the counterclaim, counsel for the 6th and 7th defendants objected to the production of letters appearing as items 2-5, 9-26 and 28-35 in the plaintiff's trial bundle, arguing that no basis had been laid for their production, that the documents were neither addressed to nor drawn by the plaintiff, and that the makers of the documents ought to be called. Plaintiff's counsel responded that at a pre-trial of 27.9.2023 - following earlier pre-trials on 4.5.2023 and 10.7.2023 - the court had directed that production of documents would not be objected to at trial, and that some documents date back to the 1970s-1990s. Counsel for the County Government and the Attorney General sided with the plaintiff. The court held that under Order 11 of the Civil Procedure Rules and clause 28(g) of the Practice Direction (Gazette Notice No. 5178 of 25.7.2014), all objections to production must be taken at the pre-trial stage where notice has been issued, and are not entertained at the main hearing thereafter. The 6th and 7th defendants had never intimated any objection nor served notices. Applying Article 159(2)(b) and (d), Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Article 50(4) of the Constitution, and case law on relevancy as the test for admissibility, the court dismissed the objection as unmerited. No costs order was made.

Key legal issues

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01

Whether documents in a trial bundle can be objected to at the main hearing after pre-trial directions that production would not be objected to

Holding

The objection was dismissed; parties who never gave notice of objection at pre-trial cannot ambush the trial with production objections.

Reasoning

The court noted a series of pre-trials (4.5.2023, 10.7.2023 and 27.9.2023) culminating in a specific direction that production of documents would not be objected to at trial. Order 11 pre-trial conferences exist to aid expeditious disposal, and the Practice Direction at clause 28(g) requires all objections to production to be taken where notice has been issued, after which objections are not entertained at the main hearing. The 6th and 7th defendants never intimated any objection nor served notices during the pre-trials.

p. 3
02

Whether active case management and the overriding objective justify admitting relevant documentary evidence upfront

Holding

Yes; active case management anchored on the overriding objective permits courts to control the introduction of evidence upfront to ensure expeditious and fair trials.

Reasoning

The court held that active case management, grounded in Article 159(2)(b) and (d) and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, empowers courts to exercise judicial control over legal processes, reduce delays and backlogs, and dispose of cases efficiently. The trial bundle is availed in advance of trial precisely so objections are resolved early, and parties and advocates are obligated to assist the court in furthering the overriding objective by complying at the appropriate time.

p. 2
03

Whether failure to call the maker of documents bars their production

Holding

No; relevancy is the test for admission of evidence, and secondary evidence through copies may be adduced with the other party retaining the opportunity to cross-examine on veracity and legitimacy.

Reasoning

Relying on the Court of Appeal decision in Evangeline Nyegera (cited in Ntarangwi M'Ikiara), the court held that fair determination of the dispute may be impossible if a party is denied the chance to adduce relevant evidence. It is imperative only that the nature, number and relevance of the documents be shown; the opposing party can test veracity and legitimacy through cross-examination. The court also invoked Article 50(4) of the Constitution, which gives courts discretion over admission of documents.

p. 3

Legal principles established

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  • Objections to the production of documents must be raised at the pre-trial/case conference stage; where notice has been issued, objections to production of documents shall not be entertained at the main hearing
  • The test for admission of evidence is relevancy, and a party should not be barred from adducing secondary evidence through copies where the documents' nature, number and relevance are shown, with cross-examination available on veracity
  • Courts have discretion under Article 50(4) of the Constitution to determine whether admission of documents would be detrimental to the administration of justice

Court orders

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  1. 1.The objection raised by counsel for the 6th and 7th defendants to the production of the documents is dismissed

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(b) and (d)
  • Constitution of Kenya, 2010Article 50(4)
  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Civil Procedure Rules, 2010 (as amended in 2020)Order 11
  • Practice Direction of the Environment and Land Court, Gazette Notice No. 5178 dated 25.7.2014Clause 28(g)

Cases cited (5)

  • Lawrence Kinyua Mwai v. Nyariginu Farmers Co. Ltd & Another
    [2019] eKLR
  • Virginia Kathambi Maingi v. Nicholas Mwatika & 2 others
    [2021] eKLR
  • Methuselar Keyah Lubembe vs Albina Kipkemoi
    [2019] eKLR
  • Ntarangwi M'Ikiara v Jackson Munyua Mutuera
    [2018] eKLR
  • Evangeline Nyegera (suing as the legal representative of Felix M'Ikiugu alias M'Ikiugu Jeremiah M'Raibuni (deceased) vs Godwin Gachagua Githui
    [2017] eKLR
Jurisdiction invoked
Order 11 of the Civil Procedure Rules, 2010 (as amended in 2020); Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Article 159(2)(b) and (d) and Article 50(4) of the Constitution; Gazette Notice No. 5178 dated 25.7.2014 clause 28(g)

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, "Kayoyo Investment Limited v Nesclay Limited & 7 others (Environment & Land Case E006 of 2022) [2024] KEELC 751 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/751/eng@2024-02-13

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