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ELCAllowedNot stated in the extract (application dated 11th June, 2024 within a pending suit)· [2024] KEELC 6670 (KLR)

United States International University & 2 others v Estate of HE Daniel Toroitch Arap Moi & 10 others (Environment & Land Case 840, 771 & 1040 of 2016 (Consolidated)) [2024] KEELC 6670 (KLR)

High Court of Kenya
9 July 2024
1,894 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The High Court removed documents filed mid-trial without permission, confirming Kenyan courts will not tolerate ambush evidence filed late in a hearing.

What this practically means

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Executive summary

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The 1st Defendant moved the Court by Notice of Motion dated 11th June, 2024 seeking to strike out or expunge the 8th Defendant's list and bundle of documents dated 7th May, 2024, contending that the 8th Defendant filed them without leave long after the hearing had commenced, thereby attempting to introduce new evidence mid-hearing and steal a match on the other parties. The 8th Defendant opposed, explaining that the documents (the Nairobi Law Monthly of March 2012, bank statements, and photographs) supported his defence that he was not a stranger or interloper to the late Daniel Toroitich Arap Moi; he attributed the delay to late acquisition, a pending bank audit, and misplacement, and argued that parties not yet heard could respond to the documents. The court framed the sole question as whether the documents were procedurally filed and, if not, whether they should be expunged. Relying on Odunga J's decisions in Interactive Gaming and National Bank of Kenya v Aswani Litondo and on Kiage JA in Salat v IEBC, the court held that Order 11 requires upfront disclosure of documents before hearing to prevent trial by ambush, and that while courts retain an inherent jurisdiction to permit late filing on a laid basis (due diligence, cruciality, no prejudice), the 8th Defendant filed without leave after hearing commenced. The court allowed the application, expunged the documents, and awarded the 1st Defendant costs against the 8th Defendant.

Key legal issues

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01

Procedural regularity of filing documents after commencement of hearing without leave

Holding

The 8th Defendant's list and bundle of documents filed after the hearing commenced and without leave were improperly on record and were expunged

Reasoning

Order 11 contemplates that all documents and witness statements be filed before case confirmation, and ideally no more documents should be allowed once hearing begins. While courts retain an inherent, double-edged jurisdiction to permit late filing in deserving cases, the party must seek leave and lay a basis, such as due diligence, cruciality and absence of prejudice. The 8th Defendant neither sought nor obtained leave, and filed the documents well after hearing had commenced.

p. 4
02

Existence of the court's inherent jurisdiction to allow late filing of documents

Holding

The court has an inherent jurisdiction, to be exercised sparingly in deserving cases upon consideration of the unique circumstances of each case

Reasoning

Order 11 requires upfront disclosure to create a level playing field and prevent trial by ambush, but the court retains an inherent jurisdiction both to ensure the ends of justice and to prevent abuse of process. Late documents may be admitted in deserving cases where the party lays a basis akin to justifying additional evidence after trial: due diligence, cruciality, and no prejudice.

p. 4

Legal principles established

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  • Order 11 of the Civil Procedure Rules requires parties to disclose their evidence upfront before commencement of hearing to avoid trial by ambush
  • A party may file documents outside the timelines only by invoking the Court's inherent jurisdiction and laying a basis for the exercise of discretion in its favour

Court orders

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  1. 1.The 8th Defendant's list and bundle of documents dated May 7, 2024 are expunged from the record of the Court
  2. 2.The 1st Defendant shall have the costs of the application against the 8th Defendant

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 3 rules 2 and 4; Order 7 rule 5(d); Order 11; Order 51

Cases cited (3)

  • Interactive Gaming & Lotteries Ltd v Flint EA Ltd) & 2 Others
    (2013) eKLR
  • National Bank of Kenya Ltd v John Aswani Litondo & Another
    NBI HCCC 171 of 2016
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 6 others
    [2013] eKLR
Jurisdiction invoked
Article 50 of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 3 rules 2 and 4, Order 7 rule 5(d), Order 11 and Order 51 of the Civil 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, "United States International University & 2 others v Estate of HE Daniel Toroitch Arap Moi & 10 others (Environment & Land Case 840, 771 & 1040 of 2016 (Consolidated)) [2024] KEELC 6670 (KLR)", Case Analysis (2024). Not stated in the extract (application dated 11th June, 2024 within a pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6670/eng@2024-07-09

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