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ELCPartially AllowedNakuru ELC Appeal (arising from Nakuru CM ELC Case No 91 of 2020)· [2025] KEELC 3763 (KLR)

Karogoi v Njenga & another (Environment and Land Appeal E020 of 2023) [2025] KEELC 3763 (KLR)

Environment and Land Court
14 May 2025
1,952 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court allowed an estate administrator a second chance to admit an allotment letter, ruling that document objections must be raised at pretrial, not at hearing.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Nakuru from a ruling of Hon. K. Kibelion, P.M dated 18th May 2023 in Nakuru CM ELC Case No 91 of 2020. The trial court had upheld the Respondents' objection to the Appellant producing an allotment letter for Commercial Plot No 79 Githioro Trading Centre, directing that the document be marked for identification because its maker was available to produce it. The Appellant, whose amended plaint sought injunction, declaration of ownership, eviction, mesne profits and rectification of the land register, appealed on the ground that he was competent to produce the original allotment letter. The Appellant's counsel relied on Sections 65(1), 67 and 107 of the Evidence Act and the Estate of Charles Ndegwa Kiragu case; the Respondents filed no submissions. M. A. Odeny, J framed a single issue: whether the trial magistrate erred in upholding the objection. The court held, applying Section 35 of the Evidence Act, that a party seeking to produce a document without calling its maker must lay the foundation that the maker is dead, cannot be found, is incapable, or that attendance would occasion unreasonable delay or expense; the Appellant had not done so, though it noted an allotment letter is a public document available from the issuing institution. However, invoking Rule 28(g) of the ELC Practice Directions and Order 11 of the Civil Procedure Rules, and following Virginia Kathambimaingi and Methuselar Keyah Lubembe, the court held that document production objections should be raised at pretrial and not at the hearing. Since the Respondents had not objected at pretrial, the court allowed the Appellant an opportunity to lay the foundation for production of the original allotment letter, with the Respondents free to prove alleged forgery in their evidence. The appeal was allowed only to that extent; no costs order was made.

Key legal issues

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01

Whether a party may produce an allotment letter without calling its maker

Holding

A party must lay the foundation for the absence of the maker under Section 35 of the Evidence Act; an allotment letter is a public document obtainable from the issuing institution

Reasoning

The court applied Section 35 of the Evidence Act, holding that where the maker is not called as a witness, the proponent must show the maker is dead, cannot be found, incapable, or that attendance would cause unreasonable delay or expense. The Appellant did not lay this foundation. The court noted an allotment letter is a public document available from the Ministry of Lands, Commissioner of Lands or county governments, but this did not excuse the failure to lay the foundation.

p. 4
02

Whether objections to production of documents can be raised at the hearing when not raised at pretrial

Holding

No - under Rule 28(g) of the ELC Practice Directions and Order 11 of the Civil Procedure Rules, objections to production of documents should be taken at the pretrial conference and not entertained at the main hearing where notice was not issued

Reasoning

The court relied on Rule 28(g) of the Practice Directions on Proceedings in the Environment and Land Courts, which requires objections to production of specific documents to be taken at the pretrial conference where notice has been issued. Order 11 case management exists to avoid ambush and derailment. Since the Respondents did not object at pretrial, the Appellant was entitled to an opportunity to lay the foundation, and the Respondents could contest forgery in their evidence.

p. 4

Legal principles established

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  • Objections to the production of specific documents must be raised at the pretrial conference and may not be entertained at the main hearing where notice was not given
  • A document is admissible on production of the original even where its maker is not called, only if the party lays the foundation that the maker is dead, cannot be found, incapable, or that attendance would occasion unreasonable delay or expense

Court orders

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  1. 1.The Appellant be given an opportunity to lay down the foundation for the production of the original Allotment letter, the Respondent having not objected to its production during the pretrial
  2. 2.The Respondents will have an opportunity to prove the alleged forgery in their evidence

Authorities

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Legislation

  • Evidence ActSection 35
  • Evidence ActSections 65(1), 67 and 107 (cited by Appellant's counsel)
  • Civil Procedure Rules, 2010Order 11 Rule 3
  • Practice Directions on Proceedings in the Environment and Land Courts, and on Proceedings Relating to the Environment and the Use and Occupation of, and Title to Land and Proceedings in other Courts (Gazette Notice No. 5178)Rule 28(g)

Cases cited (3)

  • In Re Estate of Charles Ndegwa Kiragu alias Ndegwa Kiragu- Deceased
    [2016] eKLR
  • Virginia Kathambimaingi v Nicholas Mwatika & 2 others
    [2021] KEELC 57 (KLR)
  • Methuselar Keyah Lubembe vs Albina Kipkemoi
    [2019] eKLR
On appeal from
Chief Magistrate's Court, Nakuru (Nakuru CM ELC Case No 91 of 2020)
Nakuru CM ELC Case No 91 of 2020
Jurisdiction invoked
First appellate jurisdiction over an appeal from the magistrates' court in a land matter; no specific constitutional provision cited

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, "Karogoi v Njenga & another (Environment and Land Appeal E020 of 2023) [2025] KEELC 3763 (KLR)", Case Analysis (2025). Nakuru ELC Appeal (arising from Nakuru CM ELC Case No 91 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3763/eng@2025-05-14

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