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ELCAllowedNotice of Motion dated 2nd October, 2023 (suit number not stated in ruling)· [2024] KEELC 4579 (KLR)

Kimundi v Mukaa Trading Co. Ltd & another (Environment & Land Case 50 of 2017) [2024] KEELC 4579 (KLR)

Environment and Land Court
5 June 2024
1,240 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed a land dispute litigant to introduce newly discovered documents mid-trial, confirming that short delays won't block relevant evidence.

What this practically means

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Executive summary

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This interlocutory decision of the Environment and Land Court (T. Murigi, J) determined a Notice of Motion dated 2nd October 2023 by the Plaintiff/Applicant, Pius Kimundi, in a land dispute concerning property in Sultan Hamud Township. The Applicant sought leave to adduce additional evidence comprising a new Sultan Hamud Map and proceedings of the County Assembly of Makueni debating a Sectoral Committee report dated 17th May 2023, together with leave to recall the 2nd Defendant's first witness, Mr. Julius Landu Ndile, for further cross-examination, relying on Articles 50 and 159(2)(d) of the Constitution, Section 146(4) of the Evidence Act, Sections 1A, 1B and 3A of the Civil Procedure Act, and Order 18 Rule 10 of the Civil Procedure Rules. The Applicant asserted the documents were discovered in August 2023, after the witness had been heard, and that they would assist the court determine the matter on the merits without prejudice to the 2nd Defendant, whose counterclaim was yet to be heard. The 2nd Defendant opposed, averring that its witness had retired as a director and could not be traced, that the witness was not a surveyor competent to speak to the map, and that the application was an abuse of process aimed at delaying the suit. Applying the Supreme Court's criteria in Attorney General vs Zinj Limited, the court held the additional evidence directly relevant, credible, and capable of assisting a just determination; a delay of about two months was not inordinate and the 2nd Defendant would suffer no prejudice given the right of cross-examination. The court allowed the application as prayed, granted leave to substitute a competent witness for the retired one, and ordered costs in the cause.

Key legal issues

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01

Whether leave should be granted to adduce additional evidence mid-trial

Holding

Leave granted; the documents were directly relevant, discovered recently, and the delay of about two months was not inordinate, with no prejudice to the 2nd Defendant who may cross-examine on the new evidence.

Reasoning

The court applied the Supreme Court's criteria in Attorney General vs Zinj Limited: direct relevance to the matter and the interest of justice, capacity to influence the result, inability to obtain the evidence with reasonable diligence earlier, and credibility. The documents dated 17th May 2023 were discovered in August 2023 and the application filed in October 2023; the two-month delay was not inordinate. The 2nd Defendant would have an opportunity to cross-examine and rebut, so no prejudice arose, and the evidence would assist a just determination.

p. 3
02

Whether the 2nd Defendant's witness could be recalled for further cross-examination

Holding

Leave granted under Section 146(4) of the Evidence Act, but with liberty for the 2nd Defendant to substitute another competent witness since Mr. Ndile had retired and could not be traced.

Reasoning

Section 146(4) of the Evidence Act empowers the court to permit a witness to be recalled for further examination-in-chief or cross-examination. Although the 2nd Defendant objected that its former witness, Julius Landu Ndile, had retired as a director and could not be traced, the court recognized the company's need to respond to the new evidence and granted it leave to substitute any other competent witness to proceed with its case.

p. 3

Legal principles established

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  • Considerations for granting leave to adduce additional evidence as restated by the Supreme Court in Attorney General vs Zinj Limited
  • The court's power to recall a witness under Section 146(4) of the Evidence Act

Court orders

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  1. 1.Leave granted to the Plaintiff to adduce the new additional evidence listed in the further list of documents
  2. 2.Leave granted to recall the 2nd Defendant's 1st witness for further cross-examination on the new documents
  3. 3.Leave granted to the 2nd Defendant, being a limited company, to substitute its witness with any other competent witness to proceed with its case
  4. 4.The further list of documents deemed duly filed upon payment of requisite court fees
  5. 5.Costs of the application to be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Evidence ActSection 146(4)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure Rules, 2010Order 18 Rule 10

Cases cited (1)

  • Attorney General vs Zinj Limited
    [2021] eKLR
Jurisdiction invoked
Articles 50 and 159(2)(d) of the Constitution, Section 146(4) of the Evidence Act, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 18 Rule 10 of the Civil Procedure Rules, 2010

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, "Kimundi v Mukaa Trading Co. Ltd & another (Environment & Land Case 50 of 2017) [2024] KEELC 4579 (KLR)", Case Analysis (2024). Notice of Motion dated 2nd October, 2023 (suit number not stated in ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4579/eng@2024-06-05

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