Njoroge (Suing as the administrator of the Estate of the Estate of Wangui Njoroge (Deceased) v Ticha (Environment & Land Case E068 of 2021) [2024] KEELC 3574 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to re-open a land case where the extra evidence added nothing new, and the losing party paid costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Honourable court should re-open the Plaintiff's case for purposes of receiving additional evidence?
- 2.Who shall bear costs of this application?
Key legal issues
#Whether the court should re-open the plaintiff's case to receive additional evidence from a Kiambu succession cause
The application was dismissed; the documents sought were from proceedings between different parties over different subject matter, and the witness's affidavit merely repeated his evidence in this suit.
The court found the succession cause documents involved different parties and subject matter. Having perused Dominic Ng'ang'a Gathitho's affidavit, the court found its contents identical to his testimony in this suit - that a member of Missouri Farmers Company was entitled to 12.8 acres plus 1.4 acres on rocky land and a plot along the tarmac. There was no contradiction and no evidential value to be added. Re-opening would amount to a fishing expedition causing delay.
Legal principles established
#- Re-opening of a case is a discretionary power that must be exercised judiciously, ensuring no embarrassment or prejudice to the opposite party, and will not be allowed to fill gaps in evidence or where there is inordinate and unexplained delay.
- Costs follow the event under Section 27 of the Civil Procedure Act; the successful party ordinarily gets costs unless the court directs otherwise.
Court orders
#- 1.The Notice of Motion application dated 25th September, 2023 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 48, 50 and 159 of the Constitution of Kenya, 2010; Sections 3 and 13 of the Environment and Land Court Act; Order 18 rule 10 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Section 146(4) of the Evidence Act
Relief refused
#Re-opening of the Plaintiff's case to receive additional evidence from Re Estate of Joseph Githiri Gitau, Kiambu CMCC Succession Cause No 341 of 2009
The affidavit's contents are the same as the witness's evidence in this suit and add no value; discretion to re-open not justified
Recall of Dominic Ng'ang'a Gathitho (DW2) for cross-examination on his affidavit sworn 15th July 2016
No contradiction between the affidavit and his testimony in this matter was established
Costs of the application
Application dismissed; costs follow the event
Costs
Application dismissed with costs to the Defendant/Respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The court retains discretion to allow re-opening of a case. (Emphasis mine) That discretion must be exercised judiciously.
Having interrogated the said afidavit vis-a vis the evidence tendered by Dominic Ng'ang'a Gathitho (Dw2), I am not persuaded that the afidavit or its contents will add any value to the resolution of this dispute.
Consequently, I find that the Notice of Motion application dated 25th September, 2023 lacks merit and it is hereby dismissed with costs.
Issues in the judgment
#The Applicant objects that a replying affidavit was sworn by Dominic Ng'ang'a Gathitho, yet the judgment records it as sworn by the Defendant himself, leaving the deponent's identity unclear.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoroge (Suing as the administrator of the Estate of the Estate of Wangui Njoroge (Deceased) v Ticha (Environment & Land Case E068 of 2021) [2024] KEELC 3574 (KLR)", Case Analysis (2024). Not stated in the judgment (plaint dated 1st September, 2021, filed 16th September 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3574/eng@2024-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.