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ELCPartially Allowed· [2024] KEELC 948 (KLR)

Ikiao & another v Kamencu (Environment & Land Case E008 of 2022) [2024] KEELC 948 (KLR)

Environment and Land Court
21 February 2024
965 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed a defendant to produce original documents late in trial, confirming courts favour fair hearings over strict timing objections.

What this practically means

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Executive summary

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At the close of the defence case in an Environment and Land Court suit at Meru, the defendant, through an application dated 6.2.2024 supported by an affidavit of Zakayo Kamencu, sought leave to avail the original copies of defence exhibits 2, 5, 6, 7, 12, 27, 28, 30 and 34 for inspection by the court, on the ground that the documents related to the history of the allocation of the land, approval of building plans, and payment of land rates, and that inspection was necessary for a fair determination. The plaintiffs opposed, arguing through Mr. Mokua that the application was an afterthought brought too late after pre-trial and the conclusion of the matter, and asked that the matter proceed to judgment. Defence counsel urged the court to be guided by Section 67 of the Evidence Act. The court reviewed the procedural history, noting that the documents had been produced as D. Exh No. 2–37 on 12.2.2024 without objection. It held that tendering of exhibits is governed by Orders 14–18 of the Civil Procedure Rules and Sections 66–70 and 78 of the Evidence Act read with the ELC Practice Directions; that a court's only inspection power is under Order 18 Rule 11; that production of documents is through parties and their witnesses; and that where a document was not an original when produced, the party must lay a basis, with primary evidence being the document itself. Finding that the plaintiffs had not shown the documents were foreign or new, the court allowed the defendant to avail the originals for comparison, with liberty to the plaintiff to peruse them before filing written submissions, guided by Articles 50(1) and 159(2)(d) of the Constitution. There was no order as to costs.

Key legal issues

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01

Whether a party may avail original documents for court inspection at the close of the defence case

Holding

The defendant was justified in bringing original documents for inspection under Sections 65, 66, 67 and 68 of the Evidence Act; the documents were filed with the defence and counterclaim and were not alleged to be foreign or new

Reasoning

The court held that the manner of tendering exhibits is governed by Orders 14–18 of the Civil Procedure Rules and Sections 66–70 and 78 of the Evidence Act read with the ELC Practice Directions. The court may only inspect under Order 18 Rule 11. Because the documents were already on record and the plaintiffs did not contend they were foreign, new, or unavailable when they testified, allowing inspection caused no prejudice and served the interest of a fair hearing.

p. 2
02

Whether the application was an afterthought brought too late

Holding

The lateness objection failed because the plaintiffs did not show the documents were new or not availed before they closed their case

Reasoning

Counsel for the plaintiffs argued the application was an afterthought brought after pre-trial and the close of the matter. The court rejected this, observing that the plaintiffs had not stated that the documents were foreign, new, or had not been filed and availed before the plaintiffs testified and closed their case. Permitting inspection with liberty to the plaintiff to peruse the originals before submissions preserved a fair hearing.

p. 2

Legal principles established

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  • The only inspection a court is allowed at any stage of the suit for property or a thing in issue is under Order 18 Rule 11 of the Civil Procedure Rules
  • It is not for the court to direct a party on how to produce its exhibits; parties are at liberty to avail exhibits provided procedural and substantive law is complied with
  • If a document produced was not an original, the party must lay the basis for production of the copy; primary evidence is the document itself and is the best evidence
  • Under Section 69(iv) of the Evidence Act, it is the court that dispenses with the need for production of an original document

Court orders

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  1. 1.The defendant is allowed to avail the original documents for comparison with the documents already produced
  2. 2.The plaintiff is at liberty to peruse the original documents before filing written submissions
  3. 3.No order as to costs

Authorities

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Legislation

  • Evidence ActSections 35, 65(1), 66, 67, 68, 69(iv), 70, 78
  • Civil Procedure RulesOrders 11, 14, 15, 16 (5),(6), 17, 18 (2) and Order 18 Rule 11
  • Constitution of KenyaArticles 50(1) and 159(2)(d)
  • Environment and Land Court ActPractice Directions made pursuant thereto

Cases cited (1)

  • Ken Nyaga Mwige vs Austin Kiguta & others
    (2015) eKLR
Jurisdiction invoked
Environment and Land Court Act and the Environment Land Court Practice Directions; Articles 50(1) and 159(2)(d) of the Constitution

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, "Ikiao & another v Kamencu (Environment & Land Case E008 of 2022) [2024] KEELC 948 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/948/eng@2024-02-21

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