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ELCAllowedNot stated in the ruling (suit number not reproduced)· [2024] KEELC 7333 (KLR)

Kinyanzui & 4 others v Kivondo & 20 others; Government of Makueni County (Third party) (Environment & Land Case 242 of 2017) [2024] KEELC 7333 (KLR)

Environment and Land Court
29 October 2024
4,545 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed a 14-year-old land case to admit forgotten documents, ruling a lawyer's mistake shouldn't punish the client.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court (T. Murigi J) determines a Notice of Motion dated 3rd June 2024 by the Plaintiffs, led by Capt. Peter Stannie Kinyanzui, seeking review of the court's case conference orders to enlarge time for filing an additional list of documents, and recall of PW2 to give further evidence. The Plaintiffs explained that their advocate inadvertently omitted documents - chiefly Ministry of Lands records extending time for payment of allotment letters - from the trial bundle. The 3rd, 5th, 6th, 14th, 16th, 17th, 21st and 22nd Defendants and the Interested Party opposed, arguing the application was an afterthought aimed at patching gaps exposed in cross-examination and would reopen a fourteen-year-old case; the 3rd Party similarly alleged ambushing and prejudice, four Plaintiffs' witnesses having testified. The court framed three issues: satisfaction of review conditions under Section 80 of the Civil Procedure Act and Order 45; leave to file additional documents; and recall of PW2. Finding no new matter or error apparent, the court nonetheless held the advocate's admitted mistake could not be visited on the litigants (Belinda Murai; Onchwati). The additional documents were found relevant to the suit property and the ownership claim, no prejudice was demonstrated, and the application was made promptly. Applying Mohamed Abdi Mahamud and Section 146 of the Evidence Act, the court allowed review, granted the Plaintiff 7 days to file the additional documents with corresponding leave to the Defendants, Interested Party and 3rd Party, permitted PW2's recall, and awarded costs in the cause.

Key legal issues

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01

Whether the conditions for review under Section 80 CPA and Order 45 CPR were met

Holding

The court found sufficient reasons for review: the omission was an admitted mistake of the Plaintiffs' advocate, the application was made promptly, and no prejudice was demonstrated; the mistake of counsel could not be visited on the litigants.

Reasoning

The court applied the statutory grounds of review: discovery of new and important matter, error apparent on the face of the record, and sufficient reason. It found no new matter or error apparent, but held that the advocate's admitted inadvertent omission, coupled with the absence of demonstrated prejudice and promptness of the application, constituted sufficient reason under Order 45, applying Belinda Murai and Onchwati.

p. 9
02

Whether leave should issue to file additional documents mid-trial

Holding

Leave was granted because the documents emanate from the 3rd Party/predecessor, relate to the suit property and the ownership claim, and no prejudice was shown; opposing parties retain rights of cross-examination and to file responsive documents.

Reasoning

Guided by the Mohamed Abdi Mahamud principles, the court found the documents directly relevant to the suit property and the ownership claim, capable of influencing the outcome, and explained as inadvertently omitted. Since the Plaintiffs' case was not closed and the defence had not begun, any prejudice could be cured by cross-examination, amendments or rebuttal evidence, and costs.

p. 9
03

Whether PW2 should be recalled to give further evidence

Holding

Recall allowed under Section 146 of the Evidence Act, the Defendants, Interested Party and 3rd Party having the opportunity to cross-examine PW2 on the additional documents.

Reasoning

Section 146 of the Evidence Act permits the court, in all cases, to allow a witness to be recalled for further examination in chief or cross-examination, with corresponding rights for the other side. Since the additional documents go to PW2's testimony on extension of time for payment of allotment letters, and no prejudice was demonstrated, recall was warranted in the interests of a fair hearing.

p. 9

Legal principles established

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  • A litigant should not bear the consequences of an advocate's default unless the litigant is privy to it or caused it by failing to give instructions
  • Section 80 of the Civil Procedure Act confers the power of review while Order 45 sets out the restrictive rules governing its exercise
  • Section 146 of the Evidence Act empowers the court to recall a witness for further examination, with corresponding rights of further cross-examination and re-examination

Court orders

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  1. 1.The Plaintiffs' application dated 3rd June 2024 is allowed; the court's orders on case conference are reviewed
  2. 2.The Plaintiff is granted 7 days leave to file and serve the additional list of documents
  3. 3.The Defendants/Interested Party as well as the Third Party are granted corresponding leave to file and serve additional list of documents and witness statements if need be
  4. 4.PW2 is allowed to be recalled to give further evidence
  5. 5.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 80
  • Civil Procedure RulesOrders 11, 44, 45 Rule 1
  • Constitution of KenyaArticle 50(1)
  • Evidence ActSection 146

Cases cited (15)

  • Hangover Kaakwacha Hotel Ltd v Philip Adundo & Leonard Adundo t/a Hangover Kaakwacha Hotel
    [2022] eKLR
  • Margaret Njeri Muiruri v Bank of Baroda (Kenya) Ltd
    [2001] eKLR
  • Moboko Shembekho Ltd v Kiptalam & 2 others; Agricultural Development Corporation (Third Party)
    [2023] KEELC 19982 (KLR)
  • Francis Njoroge v Stephen Maina Kamore
    [2018] eKLR
  • Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR
  • Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited
    (2014) eKLR
  • Republic v Public Procurement Administrative Review Board & 2 Others
    (2018) eKLR
  • Nyamogo & Nyamogo v Kogo
    (2001) EA 170
  • Timber Manufacturers and Dealers v Nairobi Golf Hotels (K)
    HCCC No. 5220 of 1992
  • Wachira Karani v Bildad Wachira
    (2016) eKLR
  • The Official Receiver and Liquidator v Freight Forwarders Kenya Ltd
    (2000) eKLR
  • Mohamed Abdi Mahamud v Ahmed Abdulahi Mohamad & 3 others
    {2018} eKLR
  • Belinda Murai & 9 others v Amos Wainaina
    [1978] eKLR
  • Gideon Mose Onchwati v Kenya Oil Co Ltd & Another
    (2017) eKLR
  • Shah v Mbogo
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Orders 11 and 44 of the Civil Procedure Rules (application); Section 80 CPA and Order 45 CPR (review jurisdiction)

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, "Kinyanzui & 4 others v Kivondo & 20 others; Government of Makueni County (Third party) (Environment & Land Case 242 of 2017) [2024] KEELC 7333 (KLR)", Case Analysis (2024). Not stated in the ruling (suit number not reproduced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7333/eng@2024-10-29

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