Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment

Kamau & another (Suing as the Legal Representatives of Nyambura Kamau (Deceased)) v Wainaina (Environment & Land Case 320 of 2017) [2025] KEELC 1283 (KLR)

Environment and Land Court
13 March 2025
1,638 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Thika land court refused a defendant's late attempt to add a new witness and documents because she waited too long without explaining the delay.

What this practically means

#

Executive summary

#
This was a ruling on the Defendant's Notice of Motion dated 11/12/2024 in a land suit pending since 2017 before the court at Thika. The Defendant sought leave to file and serve a witness statement by Jacinta Wanjiru Njoroge, a former official of Nyakinyua Investment Limited, together with additional documents, including a Land Disputes Tribunal decision. She argued the witness was unavailable during pre-trial stages and before close of the Plaintiff's case, and that no prejudice would arise since the Plaintiff could cross-examine her. The Plaintiff, through Daniel Gaiti, opposed the application as an afterthought and trial by ambush, arguing the proposed evidence was irrelevant, that the witness was not an official of the company, that the Defendant had already cross-examined the company's chairlady, and that the Land Disputes Tribunal lacked jurisdiction over land ownership. The court framed two issues: whether leave should be granted to file the new witness statement, and whether leave should be granted to file additional documents. Noting the Respondent closed its case on 19/9/2024 and the application was filed on 11/12/2024 without prior indication that the witness was being sought, the court found it would be unfair to allow the witness at that stage. Applying the Supreme Court's Mohamed Abdi Mahamud principles on additional evidence, the court held the Applicant failed to show the documents could not have been obtained with reasonable diligence earlier. The application was dismissed with costs to the Respondent.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicant should be granted leave to file and serve a witness statement by Jacinta Wanjiru Njoroge.
  2. 2.Whether the Applicant should be granted leave to serve and file additional documents.

Key legal issues

#
01

Whether the Applicant should be granted leave to file and serve a witness statement by a witness who was unavailable during pre-trial stages

Holding

Leave refused; the delay of almost two months after close of the Respondent's case, with no prior indication of searching for the witness, renders the application unfair and prejudicial

Reasoning

The suit was filed in 2017, hearing began on 29/6/2023, the Respondent called five witnesses and closed its case on 19/9/2024. The Applicant filed the application on 11/12/2024 without ever having informed the court she was searching for the proposed witness. Allowing a new witness at that stage would occasion unfairness and prejudice to the Respondent, whose case was closed.

p. 3
02

Whether leave should be granted to file additional documents

Holding

Refused; the Applicant failed to demonstrate that the additional evidence could not have been obtained with reasonable diligence for use at the trial

Reasoning

The court applied the Mohamed Abdi Mahamud principles on additional evidence. The Applicant made no effort to explain why the documents were not filed or procured earlier, so she did not satisfy the governing criteria, particularly reasonable diligence and the prohibition on using additional evidence to fill gaps in a case.

p. 4

Legal principles established

#
  • Additional evidence may only be admitted in exceptional circumstances on a case-by-case basis, guided by the Mohamed Abdi Mahamud principles, including relevance, influence on the outcome, inability to obtain it with reasonable diligence, credibility, and that it must not be used to fill gaps in evidence.

Court orders

#
  1. 1.The Defendant's Notice of Motion dated 11/12/2024 is dismissed
  2. 2.Costs of the application awarded to the Respondent

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Inherent jurisdiction of the court under the Civil Procedure Rules, 2010 (Orders 11 and 18 Rule 10) and Article 50(1) of the Constitution, invoked by the parties

Relief refused

#

Leave to file and serve a witness statement by Jacinta Wanjiru Njoroge

It would be unfair to the Respondent to allow an additional witness at that late stage, the suit having been filed in 2017 and the Respondent having closed its case on 19/9/2024, with no prior indication that the Applicant was searching for the witness

p. 3

Leave to file and serve additional documents in support of the Defendant's case

The Applicant made no effort to explain why the additional evidence was not filed or procured earlier and thus did not satisfy the Mohamed Abdi Mahamud principles

p. 4

Costs

The application is dismissed with costs to the Respondent.

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.

The court is of the view that it would be unfair to the Respondents to allow them to bring an additional witness at this point. The prayer is therefore denied.
p. 3Leave to adduce additional witness evidence refused
The Applicant has made no efiort to convince this court as to why the additional evidence sought to be filed was not filed or procured earlier. Therefore, the court finds that the Applicant is not deserving of the orders sought.
p. 4Failure to demonstrate reasonable diligence for additional evidence
In the circumstances, I find no merit in her application and I dismiss it with costs to the Respondent.
p. 4Disposition

Issues in the judgment

#
minor

The judgment refers to the Applicant inconsistently as 'she' and 'his' (e.g. 'Mr Odoyo, counsel for the Applicant... Counsel added that the proposed witness intends to clear the air' vs 'Why did not avail her alleged witness'), and the court is addressed in paragraph 2 grounds as if the Applicant is female but paragraph 8 refers to 'his submissions'

minor

Text contains multiple typographical errors ('Plaintifi', 'oficial', 'infiuence', 'efiort', 'dificult') and paragraph 17 contains a grammatical error ('the stated as follows')

minor

The court's name and case number are not stated anywhere in the judgment; the station is only inferred from the delivery clause

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kamau & another (Suing as the Legal Representatives of Nyambura Kamau (Deceased)) v Wainaina (Environment & Land Case 320 of 2017) [2025] KEELC 1283 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1283/eng@2025-03-13

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