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ELCPartially AllowedNot stated in the extract (notice of motion dated 7th February 2025)· [2025] KEELC 3343 (KLR)

Mwachandi v Safaricom Limited; Kathuri (Third party) (The Administrator of the Estate of Keith Kathuri - Deceased) (Environment & Land Case E010 of 2023) [2025] KEELC 3343 (KLR)

Environment and Land Court
24 April 2025
MCMBOGO C.G.
1,530 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed an elderly landowner to re-open his case to add a crucial ownership letter, but he paid Kshs. 30,000 for the delay.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court (Hon. Mbogo C.G., J) determines a notice of motion dated 7th February 2025 by the plaintiff/applicant seeking leave to re-open his case to produce a letter from the County Government of Nairobi dated 29th January 2025 certifying him as the sole bona fide owner of Plot No. CS30-Umoja Residential/Corner Shop, and to file it as an additional supplementary document. The application was anchored on Sections 1A, 1B, 3, 3A and 95 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules. The plaintiff contended that the letter was unavailable during trial owing to his advanced age, changes in County Government administration and misplaced records, invoking fair-trial rights under Article 50 of the Constitution. The defendant opposed, arguing the application, filed five months after closure of the plaintiff's case and on the eve of the defence hearing, sought to cure deficiencies exposed in cross-examination; that no diligence was shown, particularly after earlier leave to obtain documents was not pursued; and that the letter is a public document inadmissible under Section 35 of the Evidence Act unless produced by its maker. The court framed a single issue: whether the plaintiff should be allowed to re-open his case. Invoking the inherent power of the court under Section 3A, the judge found the reasons for the delay excusable, noted that the defence had not yet testified and that the plaintiff's documents could be tested by cross-examination, and that any inconvenience could be mitigated by costs. The application was allowed: leave to re-open and produce the letter was granted, the plaintiff was ordered to pay costs of Kshs. 30,000 to the defendant within 30 days, and a further mention was set for 17th June 2025.

Key legal issues

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Whether a party should be permitted to re-open its case to produce a document obtained after close of its case

Holding

Yes - the delay of five months was excusable given the applicant's advanced age and administrative changes at the County Government, and the respondent had not yet given evidence and could cross-examine on the document

Reasoning

The court invoked its inherent jurisdiction under Section 3A of the Civil Procedure Act. It weighed the need for a just disposal against the prejudice to the respondent. The reasons for the late procurement of the county certification letter were found excusable. Since the defence hearing had not commenced, the respondent was not prejudiced in substance: the respondent could still cross-examine on the letter, and any inconvenience could be mitigated through an award of costs.

p. 3

Legal principles established

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  • A court may exercise its inherent power under Section 3A of the Civil Procedure Act to allow re-opening of a case where the ends of justice so require, particularly where the opposing party has not yet given evidence and can cross-examine on the new document, with prejudice mitigated through costs

Court orders

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  1. 1.The plaintiff/applicant is granted leave to re-open his case to file and produce the letter dated 29/01/2025
  2. 2.The plaintiff/applicant to pay costs of Kshs. 30,000 to the defendant/respondent within 30 days from the date of the order
  3. 3.Further mention on 17th June, 2025 for further directions

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A and 95
  • Civil Procedure RulesOrder 51 Rule 1
  • Constitution of KenyaArticle 50
  • Evidence ActSection 35

Cases cited (8)

  • State v Hepple
    279265, 271 [1977]
  • Oakley v Royal Bank of Canada
    {2013} ONSC 145 {2013} OJ No. 109 SC
  • Susan Wavinya Mutavi v Isaac Njoroge & another
    [2020] KEELC 8 (KLR)
  • John Karuga Wahinya v Attorney General & 4 others
    [2020] eKLR
  • Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & another
    [2015] eKLR
  • Michael Kiplangat Cheruiyot v Joseph Kipkoech Korir
    [2019] eKLR
  • Samoei v National Housing Corporation & another
    [2023] eKLR
  • Mohammed Abdi Mohamud v Ahmed Abdulahi Mohamad & 3 Others
    [2018] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 95 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules

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, "Mwachandi v Safaricom Limited; Kathuri (Third party) (The Administrator of the Estate of Keith Kathuri - Deceased) (Environment & Land Case E010 of 2023) [2025] KEELC 3343 (KLR)", Case Analysis (2025). Not stated in the extract (notice of motion dated 7th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3343/eng@2025-04-24

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