Omar & another v Kulei & 4 others (Environment & Land Case E033 of 2023) [2024] KEELC 4537 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed an original 1995 land letter as evidence after reversing its earlier ruling, while refusing orders for title verification and forensic examination.
What this practically means
#Executive summary
#Key legal issues
#Whether the court's order of 28th May 2024 rejecting the original allocation letter should be reviewed
Review granted; the original letter was admitted as PEX5 in the interest of justice
The court found sufficient reason for review: the maker/custodian of the public document had been sued as a Defendant, making it impossible and impractical for the Plaintiffs to obtain certified copies or call the maker. The Defendants would have an opportunity to cross-examine, so no prejudice would be suffered. The application was allowed in the interest of justice.
Whether an error apparent on the face of the record arose from the certification requirements for public documents
The Plaintiffs argued that section 67 of the Evidence Act does not require certified copies where an original (primary evidence) exists, and that certification under sections 66, 80 and 81 applies only to secondary evidence; the court allowed review on sufficient-reason grounds
The Plaintiffs contended the ruling rendered secondary evidence superior to primary evidence contrary to section 67 of the Evidence Act. The court rested its decision on 'sufficient reason' under Order 45 Rule 1, holding that the third general head need not be analogous to the other grounds, and allowed production of the original document.
Whether the Defendants' prayers for verification of the title and forensic document examination should issue
Declined; only production of the related court files was ordered
The Defendants alleged forgeries, misalignments, erasures and inconsistent signatures on the title and letter, and sought verification, forensic examination and production of court files in related suits. The court found that since the suit was confirmed for hearing, the prudent order was production of the court files on the hearing date; the other prayers were declined.
Legal principles established
#- 'Any other sufficient reason' in Order 45 Rule 1 need not be analogous with the enumerated grounds for review, as such a restriction would clog the unfettered right given by section 80 of the Civil Procedure Act
- No prejudice arises where the maker of a document is a party to the suit who can be cross-examined on it
Court orders
#- 1.The application by the Plaintiffs dated 29th May 2024 is allowed; PMFI 5 (the original letter dated 18th May 1995) is allowed and marked as PEX5, with liberty to the Defendants to cross-examine the Plaintiffs on the letter
- 2.The Court Administrator is compelled to produce the court files in Nakuru ELC No E15 of 2021, Omar Mohammed v Thomas Kiprop Kirui and others, and Nakuru ELC No E51 of 2021, Leah Jepchumba & 2 others v Richard Kipnge'no Langat & 5 others, before this court on the hearing date
- 3.The other prayers in the Defendants' application dated 29th May 2024 (verification of the title by the Chief Lands Registrar and forensic document examination) are declined
- 4.Costs in the suit
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010 (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omar & another v Kulei & 4 others (Environment & Land Case E033 of 2023) [2024] KEELC 4537 (KLR)", Case Analysis (2024). Not stated in the judgment (referred proceedings: Nakuru ELC No E15 of 2021, Omar Mohammed Omar v Thomas Kiprop Kirui and others; Nakuru ELC No E051 of 2021, Leah Jepchumba & 2 others v Richard Kipngeno Langat & 5 others). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4537/eng@2024-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.