Vicros Holdings Limited v Ngeno & 4 others; Shelly Holdings Limited (Interested Party) (Environment & Land Petition E04 of 2023) [2025] KEELC 3348 (KLR)
The bottom line
#A Kwale land dispute heading for judgment was sent back for witnesses to testify in person because fraud claims and conflicting title documents could not be settled on paper alone.
What this practically means
#Executive summary
#Key legal issues
#Whether a petition that was directed to be disposed of by affidavit evidence and written submissions may nonetheless be converted to a viva voce hearing before judgment is delivered.
Yes. Rule 20 of the Mutunga Rules permits hearing by oral evidence on application or on the court's own motion, and the court's discretion is not extinguished by prior directions or the imminence of judgment.
The court noted the application was grounded partly on Order 40 CPR which was inapposite, but proceeded on Sections 1A, 1B, 3A of the Civil Procedure Act and Article 159(2)(d). Applying Rule 20(3) and (4) and comparative and domestic authorities, it found highly contested facts - allegations of fraud, conflicting grants and disputed chronology - that could only be tested through oral evidence and cross-examination, including of the 2nd Respondent's deponent and potentially the DCI.
Whether the application to arrest judgment and convert the petition to oral hearing was an abuse of process given that directions had been issued and parties had filed submissions.
No. Substantive justice prevails over procedural technicality, and the timing of the application does not defeat the court's discretion where evidence is likely to assist the court to arrive at a decision.
The court held that the evidence contemplated by Rule 20(3) and (4) need not be new evidence, and that a party is not barred from seeking oral hearing because directions were previously issued. It also declined to strike out the 2nd Respondent's late replying affidavit as it would be drastic to do so, emphasising the court's duty to guide parties toward fair and just resolution.
Legal principles established
#- Under Rule 20 of the Mutunga Rules a petition may be heard by affidavits, written submissions or oral evidence, and any party may apply for it to be heard viva voce; the stage at which such an application is made does not bar the court's discretion where justice requires oral evidence.
- Where facts in a constitutional petition are substantially contested, particularly allegations of fraud which must be proved to a standard higher than a balance of probabilities, the matter should be heard by viva voce evidence.
- Directions on the filing of submissions are not cast in stone; a court retains discretion to direct oral evidence in the interest of a just resolution, pursuant to Sections 1A, 1B and 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution.
Court orders
#- 1.The application dated 1st October 2024 is allowed to the extent that the hearing of the suit shall proceed by way of viva voce evidence
- 2.The Petitioner shall be entitled to the costs of the application to be borne by the Applicant
- 3.The matter shall be fixed for Mention before the ELC Judge in Kwale on 3/6/2025 for further directions
- 4.Leave to appeal the ruling is granted if required
- Jurisdiction invoked
- Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (Mutunga Rules), Rule 20; Civil Procedure Act Sections 1A, 1B and 3A
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vicros Holdings Limited v Ngeno & 4 others; Shelly Holdings Limited (Interested Party) (Environment & Land Petition E04 of 2023) [2025] KEELC 3348 (KLR)", Case Analysis (2025). Not stated in the excerpt (petition concerning LR No. 13449 Kwale Diani Beach Block). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3348/eng@2025-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.