Kayoyo Investment Limited v Nesclay Limited & 7 others (Environment & Land Case E006 of 2022) [2024] KEELC 751 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
The objection was dismissed; parties who never gave notice of objection at pre-trial cannot ambush the trial with production objections.
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.
Whether active case management and the overriding objective justify admitting relevant documentary evidence upfront
Yes; active case management anchored on the overriding objective permits courts to control the introduction of evidence upfront to ensure expeditious and fair trials.
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.
Whether failure to call the maker of documents bars their production
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.
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.
Legal principles established
#- 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
#- 1.The objection raised by counsel for the 6th and 7th defendants to the production of the documents is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.