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ELCDismissed· [2024] KEELC 1608 (KLR)

GEOFFREY THIONG’O WAWERU v KEZIAH WAHU NJUGUNA & 3 others

Environment and Land Court
14 March 2024
5,043 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 re-open a closed land case to admit a criminal acquittal judgment, ruling the parties can simply argue about it in final submissions.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Nairobi, delivered by O. A. Angote J on 14th March 2024, determined the 1st and 2nd Defendants' Notice of Motion dated 28th August 2023 seeking leave to re-open their defence case and to file a further list of documents, after the hearing of the land ownership suit had closed on 11th July 2023 and the matter was awaiting judgment. The Defendants sought to adduce the judgment in Kibera Chief Magistrate's Criminal Case No. 1653 of 2017, delivered on 3rd August 2023, acquitting Edward Wainaina Kamau and Amos Waweru Kamau, whom the Plaintiff had alleged were agents hired by the Defendants to use goons to interfere with the suit property. The Plaintiff opposed, arguing the application was a delaying tactic to fill gaps in the defence case and that the acquittal was inadmissible under Sections 46 and 47A of the Evidence Act. The Court framed a sole issue: whether to re-open the defence case and receive additional evidence. It held that criminal judgments are judgments in rem as to the accused's guilt or innocence and are admissible, and that since the judgment was delivered after the defence closed, it could not have been obtained earlier, nor was the application an attempt to fill gaps. However, because the judgment is a public document whose contents are undisputed, the Defendants did not author it and cannot be cross-examined on it, and it is relevant only to the trespass allegation and not to ownership, the Court declined to re-open the case but allowed the parties to address the judgment's contents in submissions. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether the Court should re-open the defence case and admit the Judgment in Criminal Case No. 1653 of 2017 as additional evidence

Holding

The application was dismissed. The judgment was admissible and relevant, but only to the trespass allegation, not the ownership issue; because its contents are undisputed and the Defendants did not author it and cannot be cross-examined on it, recalling a witness to produce it would waste judicial time; the parties may instead address it in submissions.

Reasoning

The Court set out the discretionary principles from Samuel Kiti Lewa and Susan Wavinya Mutavi, and the additional-evidence guidelines in Mohamed Abdi Mahamud. It found the judgment was delivered after the defence closed, so it could not have been obtained earlier, and that admitting it was not an attempt to fill gaps since both parties had alluded to the criminal case. However, the document is public, its contents undisputed, and the Defendants cannot be cross-examined on a judgment they neither authored nor were parties to. The court can examine it itself; parties may submit on it regarding trespass.

p. 10
02

Admissibility of a criminal judgment in subsequent civil proceedings

Holding

A criminal judgment determining the guilt or innocence of accused persons is a judgment in rem under Section 44 of the Evidence Act and is admissible, though its relevance here was limited to the trespass allegation.

Reasoning

The Court analysed Sections 44, 45 and 46 of the Evidence Act and endorsed the holdings in Japheth Nzila Muangi and Tile and Carpet Centre that criminal judgments constitute judgments in rem as to the legal character of the accused. The acquittal judgment was therefore admissible and not inadmissible under Sections 46 and 47A as the Plaintiff contended. Admissibility, however, did not automatically require re-opening the case.

p. 9

Legal principles established

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  • The jurisdiction to re-open a case to receive additional evidence is discretionary and must be exercised judiciously, without embarrassing or prejudicing the opposite party, and will be refused where intended to fill gaps in evidence or where there is inordinate and unexplained delay
  • A judgment in a criminal trial is a judgment in rem in so far as it determines the legal character to be ascribed to the accused persons as to their guilt or otherwise, and is admissible in subsequent civil proceedings

Court orders

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  1. 1.The Defendants' application dated 28th August, 2023 is dismissed
  2. 2.No order as to costs
  3. 3.The parties are at liberty to submit on the contents of the Judgment in the criminal case vis a vis the Plaintiff's allegation of trespass

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(b) and (d)
  • Civil Procedure Act, Cap 21Sections 1A, 1B, 3A
  • Civil Procedure RulesOrder 51(1); Order 18 Rule 10
  • Evidence Act, Cap 80Sections 44, 45, 46, 47A, 63, 107(1), 146(4)

Cases cited (8)

  • Samuel Kiti Lewa vs Housing Finance Co. of Kenya Ltd & Another
    [2015] eKLR
  • Raindrops Limited vs County Government of Kilifi
    [2020] eKLR
  • Patriotic Guards Ltd vs James Kipchirchir Sambu
    Nairobi [2018] eKLR
  • Susan Wavinya Mutavi vs Isaac Njoroge & Another
    [2020] eKLR
  • Raila Odinga & 5 others vs IEBC & 3 Others
    [2013] eKLR
  • Mohamed Abdi Mahamud vs Ahmed Abdullahi Mohamad & 3 Others
    [2018] eKLR
  • Japheth Nzila Muangi vs Kenya Safari Lodges & Hotels Ltd
    [2008] eKLR
  • Tile And Carpet Centre Limited vs Kenya Commercial Bank Limited & 2 Others
    [2020] eKLR
Jurisdiction invoked
Articles 159(2)(b) and (d) of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21; Order 51(1) of the Civil Procedure Rules

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, "GEOFFREY THIONG’O WAWERU v KEZIAH WAHU NJUGUNA & 3 others", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1608/eng@2024-03-14

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