Ikiao & another v Kamencu (Environment & Land Case E008 of 2022) [2024] KEELC 948 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a party may avail original documents for court inspection at the close of the defence case
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
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.
Whether the application was an afterthought brought too late
The lateness objection failed because the plaintiffs did not show the documents were new or not availed before they closed their case
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.
Legal principles established
#- 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
#- 1.The defendant is allowed to avail the original documents for comparison with the documents already produced
- 2.The plaintiff is at liberty to peruse the original documents before filing written submissions
- 3.No order as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.