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ELCPartially AllowedNot stated in the judgment as provided· [2024] KEELC 963 (KLR)

Kirui v Rono & 2 others (Environment & Land Case 18 of 2022) [2024] KEELC 963 (KLR)

Environment and Land Court

26 February 2024

MMM. N. Mwanyale

548 words in judgment

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The bottom line

A Kenyan land court threw out evidence a defendant tried to add mid-trial, ruling late filings without permission amount to unfair 'trial by ambush'.

What this practically means

Executive summary

This interlocutory ruling of the Environment and Land Court at Kapsabet, delivered by M. N. Mwanyale J on 26 February 2024, determined an oral objection raised by Mr. Mwetich, counsel for the Plaintiff, to the Defendants' attempt to introduce an additional witness, Mr. Samwel Kipkoech Kogo, through a list of witnesses dated 2nd December 2023, together with three new documents in a supplementary list of documents of even date. The Plaintiff had already testified and closed his case and had since passed on. Counsel objected that the witness and documents were filed without leave of the court and after closure of the Plaintiff's case, amounting to trial by ambush contrary to Article 50 of the Constitution. Mr. Karanja, for the 1st and 2nd Defendants, argued the contents were already known to the Plaintiff, being captured in the 1st Defendant's witness statement of 1st July 2013, and that the search and copy of title were public documents available at the Land Registry. Ms. Odeyo, for the 3rd Defendant, submitted there would be no prejudice. The court, relying on Johana Kipkemboi Too v Hellen Tum, held that the documents had existed throughout and ought to have been filed with the defence under Order 7(5) before trial, and that additional documents can only be filed with leave before the trial conference under Order 11. Since the trial conference had been conducted and the Plaintiff had testified with no chance to rebut, the court upheld the objection and expunged both the list of witnesses and the supplementary list of documents. No costs order was made.

Key legal issues

Whether documents and an additional witness filed after close of the Plaintiff's case and without leave may be admitted

Holding

The documents and witness cannot be relied on or admitted; they are expunged

Reasoning

The documents existed throughout and ought to have been filed with the defence under Order 7(5) before trial. Additional documents may only be introduced with leave before the trial conference under Order 11. Trial conference had been held and the Plaintiff had testified and closed her case, so she could not rebut the new evidence, causing prejudice. Reliance on Johana Kipkemboi Too v Hellen Tum where a similar mid-trial application was rejected.

p. 2

Whether the introduction amounts to trial by ambush contrary to Article 50 of the Constitution

Holding

Yes; introducing new witnesses mid-trial is trial by ambush and offends the fair hearing guarantee

Reasoning

The Plaintiff had testified and closed her case and had since passed on, and could not get a chance to rebut the additional evidence. The documents and witness were filed without leave and after trial conference. The court aligned with comparative authority rejecting a similar application where documents filed after close of the plaintiff's case greatly altered the defendant's case.

p. 2

Legal principles established

Additional documents must be filed with the defence under Order 7(5) and before commencement of trial; additional documents after that can only be filed with leave before the trial conference under Order 11
Introduction of new witnesses mid-trial, after the opposing party has testified and closed its case, constitutes trial by ambush contrary to fair hearing rights

Court orders

1.The objection by the Plaintiff is upheld
2.The list of witnesses by Samuel Kipkoech Kogo dated 2/12/2023 is expunged
3.The supplementary list of documents by the Defendants dated 2/12/2023 is expunged

Authorities

Legislation

Constitution of Kenya, 2010Article 50
Civil Procedure RulesOrder 7 rule 5
Civil Procedure RulesOrder 11

Cases cited (1)

Johana Kipkemboi Too v Hellen Tum

Jurisdiction invoked: Original civil jurisdiction of the Environment and Land Court over the suit; interlocutory case management powers under the Civil Procedure Rules (Orders 7 and 11)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kirui v Rono & 2 others (Environment & Land Case 18 of 2022) [2024] KEELC 963 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/963/eng@2024-02-26

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