Kinyanzui & 4 others v Kivondo & 20 others; Government of Makueni County (Third party) (Environment & Land Case 242 of 2017) [2024] KEELC 7333 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the conditions for review under Section 80 CPA and Order 45 CPR were met
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.
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.
Whether leave should issue to file additional documents mid-trial
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.
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.
Whether PW2 should be recalled to give further evidence
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.
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.
Legal principles established
#- 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
#- 1.The Plaintiffs' application dated 3rd June 2024 is allowed; the court's orders on case conference are reviewed
- 2.The Plaintiff is granted 7 days leave to file and serve the additional list of documents
- 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.PW2 is allowed to be recalled to give further evidence
- 5.Costs in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.