Shah v Chief Lands Registrar & 5 others (Environment and Land Case Civil Suit 593 of 2016) [2024] KEELC 5582 (KLR)
The bottom line
#A Kenyan court refused to let a litigant add late documents and recall a witness because she gave no credible explanation for the delay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 2nd defendant's 2nd list of documents marked 'AWM1' should be admitted in evidence
- 2.Whether the 2nd defendant's witness, Agnes Wambui Manjeru, should be recalled to give further evidence
Key legal issues
#Whether the court should exercise its discretion to admit additional documents and recall a witness after the trial has substantially proceeded
The application was dismissed because the applicant gave no details of when the documents were discovered, pre-trial directions had been repeatedly given including a self-executing order excluding late documents, and the trial was at an advanced stage
The court found the applicant's claim that her current advocate only recently 'stumbled across' the documents was vague and unverified by affidavit of the person who made the discovery. Multiple pre-trial directions had been given, including a self-executing order that no documents filed outside timelines would be accepted. The hearing had progressed with the plaintiff's case closed and defence case partly heard, with no complaint about missing documents until months later. The overriding objective demanded procedural fairness and efficiency.
Treatment of submissions filed out of time
Following Dande v DPP, the late submissions of both the applicant and the plaintiff were expunged
Relying on the Supreme Court's admonition in Dande & 3 others v Director of Public Prosecutions, the court held that taking submissions filed irregularly out of time would condone an unacceptable practice, and accordingly expunged both parties' late submissions while still considering the application itself and the plaintiff's replying affidavit.
Legal principles established
#- Submissions filed out of time are irregular and should be expunged
- Where reopening is sought on the basis of new or additional evidence, the court will inquire why the evidence was not called at the hearing
- The court must apply the overriding objective, weighing procedural justice and efficiency, especially where a matter is at an advanced stage
Court orders
#- 1.The submissions of the applicant and the plaintiff filed out of time are expunged
- 2.The application dated 6.5.2024 is dismissed with costs to the plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original trial jurisdiction of the Environment and Land Court
Relief refused
#Admission of the 2nd list of documents marked 'AWM1' in evidence
No disclosure of when the documents were discovered; pre-trial directions had been given and a self-executing order barred late documents; the matter is at an advanced stage of hearing
Recall of the 2nd defendant's witness Agnes Wambui Manjeru to give further evidence
Same reasons as the dismissal of the application; the discretion under Section 146(4) of the Evidence Act and Order 18 Rule 10 was not exercised in the applicant's favour
Costs
Application dismissed with costs to the plaintiff
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Noting that this matter is at an advanced stage of the hearing, taking into account that pretrial directions had been taken on several occasions and that there is no disclosure as to when the new evidence was discovered, then, I find that the application dated 6.5.2024 is not merited, the same is hereby dismissed with costs to the plaintifi.
If an application is made to reopen the case on the basis that new or additional evidence is available, it will be relevant, at that stage, to inquire why the evidence was not called at the hearing
The court may in all cases permit a witness to be recalled either for further examination-inchief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively
This practice is irregular and unacceptable. We have, in this respect, not taken into consideration in this ruling, submissions irregularly filed
Issues in the judgment
#The judgment is missing paragraph 13's number ordering appears intact but the citation of Moschion appears inconsistently as KEELC 17144 in the body; also the citation in the case name reads '[2023] KEELC 17144 (KLR)' which may be a typographical rendering
The judgment does not state the case number, parties' names or the neutral citation in the text provided
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shah v Chief Lands Registrar & 5 others (Environment and Land Case Civil Suit 593 of 2016) [2024] KEELC 5582 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5582/eng@2024-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.