Continental Credit Finance Limited (In Liquidation) v Wanjohi & 2 others (Environment & Land Case 339 of 2011) [2025] KEELC 944 (KLR)
The bottom line
#A Kenyan court ruled that a Gazette Notice challenging a company's existence is admissible in a land dispute, and silence in a reply is not an admission.
What this practically means
#Executive summary
#Key legal issues
#Res judicata - whether the admissibility objection had already been determined in prior rulings
The objection was not res judicata; the earlier rulings of Okong'o J (7 December 2022) and Mogeni J (3 June 2024) dealt with re-opening the case/relevance of the Gazette Notice and production by a non-maker respectively, not the admissibility now raised, save for relevance of the Gazette Notice which the court would not revisit.
The court reviewed the two prior rulings. The 2022 ruling concerned re-opening the plaintiff's case and found the Gazette Notice relevant and material; the 2024 ruling concerned production by a person who had not recorded a statement. The objection before the court - admissibility on relevance and fair-trial grounds - was not raised in either. However, having found the Gazette Notice relevant, the court declined to revisit that question.
Whether the Gazette Notice is relevant and admissible
The Gazette Notice is relevant and admissible; relevance is tested against the pleadings, and there is a joinder of issue on whether the plaintiff sold the suit property, so the non-existence of Jamu Impex Enterprises Ltd is a matter in issue.
Section 5 of the Evidence Act confines evidence to facts in issue and relevant facts. Relevance is tested by the pleadings. The plaintiff pleaded it did not sell the property; the defendants pleaded sale to Jamu Impex Enterprises Ltd. Order 2 Rule 12(1) provides that absence of a reply to a Defence results in joinder of issue on the Defence, so the plaintiff was not obliged to deny the Defence averments by reply. Fair hearing concerns were met by corresponding leave and willingness to recall witnesses.
Whether failure to file a reply amounted to admission of the company's existence
No; only allegations in a plaint or counterclaim must be specifically traversed. Failure to reply to a Defence does not amount to admission of its averments.
Order 2 Rule 11(3) requires specific traversal of allegations in a plaint or counterclaim only. Order 2 Rule 12(1) provides that where there is no reply to a Defence, there is joinder of issue on that Defence. The result would have been different had the defendants filed a counterclaim, which they did not.
Whether production of the Gazette Notice would violate the Defendants' right to a fair hearing
No; corresponding leave was granted to the defendants to file responding documents and the plaintiff offered to recall witnesses for cross-examination.
The court noted that after leave was granted to the plaintiff to file the Gazette Notice, corresponding leave was given to the defendants to file documents in response, and the plaintiff expressed willingness to recall witnesses for cross-examination. To further level the field, the producing witness must file and serve a witness statement.
Legal principles established
#- Only allegations of fact made in a Plaint and Counterclaim must be specifically traversed, not those made in a Defence; failure to reply to a Defence does not amount to admission of its contents
- The general rule of admissibility is that only evidence of facts in issue and relevant facts may be given
- Relevance must be tested by the pleadings
- The court may disregard evidence contrary to a party's pleadings at judgment stage
Court orders
#- 1.The objection by the Defendants' counsel is dismissed with no order as to costs
- 2.The witness who will produce the Gazette Notice shall file and serve a witness statement
- 3.The Defendants are at liberty to recall any witness for cross-examination limited to the contents of the Gazette Notice
- 4.The only document to be produced by the witness is in respect of the documents in the Plaintiff's Supplementary List of Documents dated 21st June, 2021
- Jurisdiction invoked
- Original civil jurisdiction (suit for injunctive and declaratory relief over L.R No 209/8161); no specific constitutional or statutory provision invoked for jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Continental Credit Finance Limited (In Liquidation) v Wanjohi & 2 others (Environment & Land Case 339 of 2011) [2025] KEELC 944 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/944/eng@2025-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.