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ELCPartially AllowedNot 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)· [2024] KEELC 4537 (KLR)

Omar & another v Kulei & 4 others (Environment & Land Case E033 of 2023) [2024] KEELC 4537 (KLR)

Environment and Land Court
5 June 2024
2,007 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (A. O. Ombwayo, J) determines two competing applications dated 29th May 2024 in a land ownership dispute over LR No. 13-287/99. The Plaintiffs, who claim they purchased the suit property from the 5th Defendant and obtained a certificate of title on 14th February 1996, sought review of the court's order of 28th May 2024 which had sustained an objection to production of the original allocation letter dated 18th May 1995 for want of a certified copy or the maker. They argued that the maker and custodian of the public document had been sued as a Defendant, making certification and calling of the maker impossible, and that section 67 of the Evidence Act does not require certified copies where an original exists. Relying on section 80 of the Civil Procedure Act and Order 45 Rule 1, the court held that 'any other sufficient reason' need not be analogous with the enumerated grounds, allowed the review, and admitted the letter as PEX5, with liberty to cross-examine. The 1st and 4th Defendants separately sought verification of the certificate of title by the Chief Lands Registrar, forensic document examination of the letter and title (alleging forgeries, erasures and inconsistent signatures), and production of court files in two related Nakuru ELC suits. The court declined the verification and forensic examination prayers but ordered the Court Administrator to produce the related court files on the hearing date. Costs were in the suit.

Key legal issues

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01

Whether the court's order of 28th May 2024 rejecting the original allocation letter should be reviewed

Holding

Review granted; the original letter was admitted as PEX5 in the interest of justice

Reasoning

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.

p. 3
02

Whether an error apparent on the face of the record arose from the certification requirements for public documents

Holding

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

Reasoning

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.

p. 3
03

Whether the Defendants' prayers for verification of the title and forensic document examination should issue

Holding

Declined; only production of the related court files was ordered

Reasoning

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.

p. 4

Legal principles established

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  • '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

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  1. 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. 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. 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. 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

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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, "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.