Karogoi v Njenga & another (Environment and Land Appeal E020 of 2023) [2025] KEELC 3763 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a party may produce an allotment letter without calling its maker
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
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.
Whether objections to production of documents can be raised at the hearing when not raised at pretrial
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
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.
Legal principles established
#- 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
#- 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.The Respondents will have an opportunity to prove the alleged forgery in their evidence
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.