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ELCPartially AllowedMotion dated 27/1/2025 in pending suit (Plaint dated 3rd March 2023)· [2025] KEELC 1119 (KLR)

Ahmed v Lamu Marine Services Limited & 3 others (Environment & Land Case E013 of 2023) [2025] KEELC 1119 (KLR)

Environment and Land Court
6 March 2025
MNMwangi Njoroge
1,243 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court allowed a plaintiff to add a crucial late-arriving survey document to their case, confirming that procedure must yield to substantive justice when no one is prejudiced.

What this practically means

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Executive summary

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The Plaintiff sued the Defendants by a plaint dated 3rd March 2023 concerning land in Mombasa, including LR. No. 12852/381-382. Hearing commenced on 29/4/2024 with the Plaintiff as PW1, after which summons were issued to the Director of Surveys. On 3/2/2025, before the hearing could resume, the Plaintiff's advocate moved the court by a Motion dated 27/1/2025, sanctioned under Articles 47 and 159(2) of the Constitution, sections 1A, 1B and 3A of the Civil Procedure Act and section 146(4) of the Evidence Act, seeking leave to file a further list of documents to include a letter dated 10/7/2024 by the Director of Surveys cancelling all survey records relating to LR. No. 12852/118 and LR. No. 12852/163 (the 2nd Defendant's property) for encroaching on the Plaintiff's land. The Defendants filed no response, and the court directed written submissions. The Plaintiff's counsel argued the document was recently discovered, crucial to a just determination, and that no prejudice would ensue since the Director of Surveys was yet to testify. Framing the sole issue as whether the Plaintiff should be allowed to file a further list of documents, the court, relying on Anne Mumbi Hinga v Gaitho Oil Limited and Steven Kariuki v George Mike Wanjohi, held that procedural rules yield to substantive justice and that, with the Plaintiff's case still open and the document's author available for cross-examination, the Defendants would suffer no prejudice. The application, being unopposed, was allowed in terms of prayers 2 and 3, with liberty for the Defendants to file responsive documents within 7 days, each party bearing its own costs, and the suit mentioned on 30/4/2025 for further directions.

Key legal issues

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01

Whether a plaintiff whose case is still ongoing may file a further list of documents

Holding

Yes, where the document is crucial, was recently discovered, and no prejudice will be suffered by the defendants, who can still cross-examine the document's author

Reasoning

The court relied on the overriding objective under Article 159 and sections 1A, 1B and 3A of the Civil Procedure Act, holding that rules of procedure are handmaidens of justice. Since the plaintiff had called only one witness and had not closed his case, and the Director of Surveys (author of the letter) was yet to testify, the defendants could cross-examine on the document. The application was also unopposed, leaving no basis to refuse the orders sought.

p. 3

Legal principles established

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  • Procedural rules are not cast in stone; the overriding objective and Article 159 empower the court to allow further documents absent prejudice to the other side.

Court orders

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  1. 1.The Plaintiff's application dated 27/1/2025 is allowed in terms of prayers 2 and 3
  2. 2.The Plaintiff is allowed to file a further list of documents to include the letter dated 10/7/2024 by the Director of Surveys
  3. 3.The draft further list of documents dated 27/1/2025 is deemed as filed
  4. 4.The Defendants shall file any further List and Bundle of Documents in response within 7 days
  5. 5.Each party shall bear its own costs
  6. 6.The suit shall be mentioned on 30/4/2025 for further directions

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 159(2)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Evidence ActSection 146(4)
  • Civil Procedure Rulesnull

Cases cited (5)

  • Anne Mumbi Hinga –v- Gaitho Oil Limited
    (2013) eKLR
  • Steven Kariuki –v- George Mike Wanjohi & 2 Others
    [2013] eKLR
  • P.H. Ogola Onyango t/a Pittconsult Consulting Engineers v Daniel Githegi t/a Quantalysis
    [2005] eKLR
  • Lopuonyang v Longorenyang & 2 Others
    (ELC 165 of 2016) [2023] KEELC 280 (KLR)
  • Edward Steven Mwiti –vs- Peter Irungu & 2 Others (No. 2)
    Nambi High Court ELC 105 of 2011 (2012) eKLR
Jurisdiction invoked
Articles 47 and 159(2) of the Constitution; sections 1A, 1B and 3A of the Civil Procedure Act; section 146(4) of the Evidence Act

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, "Ahmed v Lamu Marine Services Limited & 3 others (Environment & Land Case E013 of 2023) [2025] KEELC 1119 (KLR)", Case Analysis (2025). Motion dated 27/1/2025 in pending suit (Plaint dated 3rd March 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1119/eng@2025-03-06

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