Kamau v County Government of Nairobi City County & 2 others (Environment & Land Case E248 of 2021) [2025] KEELC 929 (KLR)
The bottom line
#A Kajiado court refused a defendant's late attempt to change its defence and add evidence, ruling the move unfairly ambushed the plaintiff.
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 1st Defendant's application is merited
Key legal issues
#Whether the 1st Defendant's application to amend its defence and file additional documents after the Plaintiff's case closed is merited
The application is not merited and is dismissed in its entirety
The court noted the Plaintiff's case was heard and closed on 9th May 2024 and the defence hearing was scheduled for 3rd October 2024. The Applicant did not explain why it failed to produce the intended evidence within the timelines set at pre-trial, despite being given last opportunity to comply with Order 11. The proposed evidence was authored by the Applicant itself, so it must have always been in its possession. Allowing the application would ambush the Plaintiff, who cannot testify again, and would amount to a mockery of the justice system contrary to Article 50 of the Constitution.
Legal principles established
#- A party must not withhold evidence within its possession and introduce it after the opposite party has closed its case, as this offends the objectives of the Civil Procedure Act and Article 50 of the Constitution on fair trial
- Where new material is so substantial as to make it difficult or impossible for the other party to respond effectively, the court must act with abundant caution in granting leave for additional evidence
Court orders
#- 1.The 1st Defendant/Applicant's Notice of Motion dated 17th September, 2024 is dismissed in its entirety with costs to the Plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B & 3A of the Civil Procedure Act; Order 8 Rules 3 and 5 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Section 3A of the Environment and Land Court Act; Article 159(2) of the Constitution of Kenya, 2010
Relief refused
#Leave to amend statement of defence, list of witnesses, witness statement and list of documents, and 7 days to file and serve the same
The application was an afterthought filed after the Plaintiff closed his case; the Applicant failed to explain the delay and allowing it would prejudice the Plaintiff and offend Article 50 on fair trial and the objectives of the Civil Procedure Act
Costs
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.
Accordingly, the 1st Defendant/Applicant Application dated 17th September, 2024 is hereby dismissed in its entirety with costs to the Plaintifi.
It is unacceptable for a party to withhold information only to file it as and when they seek to fill in gaps in evidence and after the opposite party has already closed its case.
The provisions of Order 3 and Order 7 are meant to curb trials by ambush.
The parties have a duty to ensure they comply with their respective timelines, and the court must adhere to its own.
Issues in the judgment
#The judgment repeatedly misspells 'Plaintiff' as 'Plaintifi' and 'Afidavit' as 'afidavit', and the citation of the Odinga pre-trial conference decision is quoted before the decision itself is named in paragraph 11 (quote precedes citation)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau v County Government of Nairobi City County & 2 others (Environment & Land Case E248 of 2021) [2025] KEELC 929 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/929/eng@2025-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.