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ELCDismissedPetition of 2015 (Kitale ELC)· [2024] KEELC 4660 (KLR)

Claassen v Commissioner of Lands & 6 others (Environment & Land Petition 7 of 2015) [2024] KEELC 4660 (KLR)

Environment and Land Court
13 June 2024
FNFred Nyagaka
3,290 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Kitale land court refused to let a petitioner add a late Ministry of Lands letter, calling it a fishing expedition, and ordered him to pay costs.

What this practically means

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Executive summary

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By a Notice of Motion dated 13/04/2023 under Article 159(2)(d) of the Constitution and Rule 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, the Petitioner - Administrator of the Estate of the late Nicolaas Hendrik Claasan - sought leave to file a Further Supplementary Affidavit annexing a letter (KWC1) dated 28/03/2023 received from the Ministry of Lands concerning an alleged Power of Attorney from Nicholas Hendrick Claassen to R.F. Lindsell. The 1st to 4th and 7th Respondents opposed, arguing the letter was a fishing expedition, manufactured during the pendency of the nearly decade-old litigation, prejudicial, hearsay, and contrary to Articles 47, 48 and 50 and the Access to Information Act; the 5th Respondent did not oppose. The court framed two issues: whether the application was merited, and costs. Reviewing Order 3 Rule 2 and Order 7 Rule 5 of the Civil Procedure Rules, the judge held that documents must accompany pleadings at filing, with only an exceptional due-diligence gateway for pre-existing but inaccessible documents. The court found the Petitioner had, suo moto and nearly seven years after filing, prompted the creation of the letter after certifying readiness and beginning his testimony; the letter contained undisclosed sources, unsolicited information and hearsay, and was authored to suit the Petitioner's narrative, making it prejudicial to the Respondents. The application was dismissed with costs to the opposing Respondents, and the matter was fixed for virtual mention on 16/07/2024 for a further hearing date.

Key legal issues

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01

Whether leave should be granted to introduce a Further Supplementary Affidavit attaching a letter obtained from the Ministry of Lands during the pendency of the Petition

Holding

Leave refused; the letter was a fishing expedition, prejudicial, hearsay-laden and outside the governing procedural rules

Reasoning

The court distinguished the normal rule that documents relied on at trial must accompany the pleading under Order 3 Rule 2 and Order 7 Rule 5, with only an exceptional due-diligence gateway. The Petitioner, after certification of readiness and after beginning his testimony, prompted the creation of the letter nearly seven years into the case. The letter's source was undisclosed, contained unsolicited information and hearsay, and was authored to suit the Petitioner's narrative, so its introduction would prejudice the Respondents and fall outside Order 11.

p. 6

Legal principles established

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  • Documents must accompany the plaint or petition at filing under Order 3 Rule 2 and Order 7 Rule 5; later-obtained documents to support a claim amount to a fishing expedition
  • A court may exceptionally permit a document in existence before filing but which could not, with due diligence, have been obtained by the filing party

Court orders

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  1. 1.The Application dated 13/04/2023 is dismissed with costs to the Respondents who opposed it
  2. 2.The matter is fixed for mention virtually on 16/07/2024 for purposes of fixing a further hearing date

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticles 47, 48 and 50
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure RulesRule 19
  • Civil Procedure RulesOrder 3 Rule 2; Order 7 Rule 5; Order 11 (including Rule 3 and Rule 7(3))
  • Civil Procedure ActSections 1A and 1B
  • Access to Information ActSections 8, 9 and 10
  • Environment and Land Court Actregulations made thereunder; Practice Directions (Mutunga Rules), Rule 28(b)

Cases cited (9)

  • Arthur Kibira Apungu & Another v Independent and Electoral Boundaries Commission & 2 Others
    [2013] eKLR
  • Kapusia ole Saloni v. James Kipas Langues & 2 Others
    [2017] eKLR
  • Johanna Kipkemei Too v Helen Tum
    [2014] eKLR
  • Gituma Kaumbi Kioga v Kenya Revenue Authority & Another
    [2020] eKLR
  • Raila Odinga & 5 Others v. I. E. B. C. and 3 Others
    [2013] eKLR
  • Mwangi v Karanja (Civil Appeal 05 of 2018)
    [2022] KEHC 454 (KLR) (10 May 2022) (Ruling)
  • Wanje & Others v Sakwa & Others
    [1984] KLR 275
  • Isaac Gichunge Leakey v. Njogu Titus Gichuru
    [2020] eKLR
  • Mohamed Abdi Mahamud v. Ahmed Abdullahi Mohamad & 3 others
Jurisdiction invoked
Article 159(2)(d) of the Constitution of Kenya; Rule 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and 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, "Claassen v Commissioner of Lands & 6 others (Environment & Land Petition 7 of 2015) [2024] KEELC 4660 (KLR)", Case Analysis (2024). Petition of 2015 (Kitale ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4660/eng@2024-06-13

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