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ELCAllowedAppeal filed 12th May 2023 (arising from Tamu PMC ELC No. E025 of 2021)· [2024] KEELC 5345 (KLR)

Ogolla & another v Omanje & another (Environment and Land Appeal E019 of 2023) [2024] KEELC 5345 (KLR)

Environment and Land Court
18 July 2024
2,937 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Appellants sued at Tamu Law Court (Tamu PMC ELC No. E025 of 2021) claiming ownership of Kisumu/Sidho East/22, purchased from Kadundo Simon on 3rd March 2021, and sought a permanent injunction against the Respondents. The 1st Respondent contended the suit property was subdivided in 1994 following a sale to her mother, Janet Omanje. At trial, the Appellants' witnesses referred to their bundle of documents but, through oversight, none were produced in evidence. After both parties closed their cases, the Appellants filed a Notice of Motion dated 6th April 2023 seeking to recall a witness to produce the bundle, or in the alternative to have it deemed properly produced. The 1st Respondent opposed. By a ruling delivered on 9th May 2023, the lower court dismissed the application, attributing the omission to lethargy rather than mistake and holding it was not a fit case to exercise discretion in the Appellants' favour. Aggrieved, the Appellants appealed. S. Okong'o J considered the discretionary powers under section 146(4) of the Evidence Act and Order 18 Rule 10 of the Civil Procedure Rules, and the test in Mbogo v Shah for interfering with a lower court's discretion. The court found the documents were crucial to the Appellants' case, the failure to produce them followed the death of their former advocate, and the lower court's lethargy finding was unsupported by evidence. Refusing the documents would deny the Appellants a fair trial, while the 1st Respondent's only prejudice - delay - was compensable in costs. The appeal was allowed; the lower court's ruling was set aside and substituted with an order allowing the Appellants' application in terms of prayer 3, subject to the assumption that no final judgment had been given in the lower court. Each party was to bear its own costs of the appeal.

Key legal issues

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01

Whether the lower court properly exercised its discretion in refusing the application to recall a witness to produce the Appellants' bundle of documents

Holding

The lower court did not exercise its discretion properly; it failed to consider relevant matters (prejudice to the 1st Respondent and the effect of refusal on the Appellants' case) and arrived at a wrong decision

Reasoning

The court had power under section 146(4) of the Evidence Act and Order 18 Rule 10 of the Civil Procedure Rules to recall a witness, but the power is discretionary and must be exercised judiciously. The Appellants showed sufficient cause for the omission: the documents were crucial, not new to the 1st Respondent, and the failure followed the death of their advocate. The finding of lethargy was unsupported by evidence. Refusal would deny the Appellants a fair trial, while any prejudice to the 1st Respondent was compensable in costs.

p. 5
02

Prejudice analysis in applications to re-open or adduce further evidence

Holding

Re-opening is allowed where it serves justice and does not embarrass or prejudice the opposite party; it should not be allowed to fill gaps in evidence or where there is inordinate and unexplained delay

Reasoning

The court adopted the principles in Samuel Kiti Lewa: the discretion to re-open must be exercised judiciously, ensuring no embarrassment or prejudice to the opposite party, and refusing to permit filling of evidentiary gaps or inordinate delay. On the facts, the Appellants' explanation of oversight following the death of their advocate was accepted and the 1st Respondent demonstrated no prejudice beyond delay.

p. 5

Legal principles established

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  • A court will not interfere with the exercise of discretion by an inferior court unless satisfied the decision is clearly wrong, because it misdirected itself, acted on wrong matters, or failed to consider relevant matters and arrived at a wrong conclusion
  • Disallowing additional or omitted evidence amounts to denying a party a fair trial where the evidence is crucial and no prejudice incapable of compensation in costs is demonstrated

Court orders

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  1. 1.The appeal is allowed
  2. 2.The ruling and orders made by the lower court on 9th May 2023 are set aside and substituted with an order allowing the Appellants' Notice of Motion dated 6th April 2023 in terms of prayer 3 thereof
  3. 3.The order for the recall of the witness is granted on the assumption that the lower court has not given its final judgment in the lower court matter
  4. 4.Each party shall bear its costs of the appeal

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(e)
  • Civil Procedure RulesOrder 51 Rules 1 and 17; Order 18 Rule 10
  • Evidence ActSection 146(4)

Cases cited (4)

  • Patriotic Guards Ltd. v. James Kipchirchir Sambu
    [2018] eKLR
  • Mbogo v. Shah
    [1968] E. A. 93
  • Mohamed Abdi Mahamud v. Ahmed Abdullahi Mohamad & 3 others
    [2018] eKLR (Ruling delivered on 28th September 2018)
  • Samuel Kiti Lewa v. Housing Finance Co. of Kenya Ltd & another
    [2015] eKLR
On appeal from
Tamu Law Court (Principal Magistrate's Court, Environment and Land)
Tamu PMC ELC No. E025 of 2021
Jurisdiction invoked
First appeal against ruling of the lower court under the Civil Procedure Act and Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ogolla & another v Omanje & another (Environment and Land Appeal E019 of 2023) [2024] KEELC 5345 (KLR)", Case Analysis (2024). Appeal filed 12th May 2023 (arising from Tamu PMC ELC No. E025 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5345/eng@2024-07-18

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