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ELCDismissedNot stated in the judgment (ELC suit filed 2nd April 2002, Nakuru; related: ELC No 13 of 2023)· [2024] KEELC 781 (KLR)

Doune Farm Limited v Soi & 4 others; Borop Multi Purpose Co-operative Society Ltd (Interested Party) (Environment and Land Case 142 of 2019) [2024] KEELC 781 (KLR)

Environment and Land Court
20 February 2024
MOM. A. Odeny
2,521 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to let a landowner add a government report mid-trial, warning that you cannot gather new evidence late just to fix a weak case.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (M. A. Odeny, J) determined a Notice of Motion dated 28th September 2023 by the plaintiff, Doune Farm Limited, seeking to have a supplementary list of documents dated 8th September 2023 deemed properly filed, so as to introduce a report of the Commissioner of Co-operatives dated 17th June 2022. The plaintiff, registered owner of LR No 9045/9 Rongai, relied on Mohamed Abdi Mahamud, Munyu Maina and Johana Kipkemei Too, arguing the report was crucial to proof of ownership and would not prejudice the other parties. The defendants and the interested party, Borop Multipurpose Co-operative Society Ltd, opposed, contending that the report was procured during litigation without leave, made conclusive findings on live issues before the court, was an afterthought after the plaintiff's director had testified and been cross-examined, violated sub-judice and lis pendens, and was a second bite at the cherry. The court noted this was one of the oldest cases in the station, filed in 2002, that this was the second application to file additional documents, and that prior case-management orders barred new documents. Relying on Hussein Khalid on de novo hearings, Johana Kipkemei Too and Mansukhalal Jesang Maru, the court held the report did not meet the threshold for additional evidence, was intended to fill gaps, and its prejudicial effect outweighed its probative value. The application was dismissed with costs to the respondents, with directions to fix the suit for hearing on a priority basis.

Key legal issues

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01

Whether the Commissioner of Co-operatives' inspection report could be admitted as additional evidence after the plaintiff had testified and been cross-examined

Holding

The application was dismissed; the report did not meet the threshold for additional evidence and was meant to fill gaps in the plaintiff's case

Reasoning

The court noted the suit was filed in 2002 and the report was procured in 2022 while litigation was pending and without leave of court. The plaintiff had already given evidence and been cross-examined, and prior case-management orders barred new documents. The report went to the root of the dispute on ownership and would prejudice the opposing parties, who did not participate in its preparation.

p. 5

Legal principles established

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  • A de novo hearing is a continuation of a trial, not an opportunity to fill gaps with new evidence
  • The court has discretion to permit additional evidence, weighed against prejudice to the opposing party and the stage of proceedings
  • Leave to file additional documents may be limited by prior case-management orders; a party circumventing such orders without applying for review cannot succeed

Court orders

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  1. 1.The Notice of Motion dated 28th September 2023 is dismissed
  2. 2.Costs of the application to the respondents
  3. 3.Parties to fix the matter for hearing on a priority basis
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a land ownership dispute

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Doune Farm Limited v Soi & 4 others; Borop Multi Purpose Co-operative Society Ltd (Interested Party) (Environment and Land Case 142 of 2019) [2024] KEELC 781 (KLR)", Case Analysis (2024). Not stated in the judgment (ELC suit filed 2nd April 2002, Nakuru; related: ELC No 13 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/781/eng@2024-02-20

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