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ELCPartially AllowedNot stated in the judgment as provided· [2025] KEELC 4262 (KLR)

Wanderi & another v Madisurp Investments & 7 others; Kamau (Intended Interested Party) (Environment & Land Case 13 of 2024) (Environment and Land) [2025] KEELC 4262 (KLR)

Environment and Land Court
5 June 2025
3,506 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Naivasha land court allowed late-filed documents and a witness recall because no real prejudice was shown, but dismissed an ignored joinder application.

What this practically means

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Executive summary

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The Environment and Land Court at Naivasha (M.C. Oundo, J) delivered a ruling on two notices of motion in a long-running land suit. The first application, dated 4th February 2025, was brought by the 3rd Defendant, Lawrence Maina Mwangi, seeking leave to file his list and bundle of documents out of time and to be recalled for further examination. The Plaintiffs opposed, arguing trial by ambush, delay of over 12 years, and prejudice since they had closed their case. The court, while acknowledging that the trial had reached an advanced stage, held that the Plaintiffs had not demonstrated actual prejudice, that most documents had already been alluded to during the hearing and formed part of the court record, and that the mistake of counsel should not be visited upon a litigant. Invoking Article 50(1) of the Constitution and Section 3A of the Civil Procedure Act, the court allowed the application, directing filing and service within 7 days, with a right of rejoinder and recall of witnesses, costs to abide the outcome of the main suit. The second application, dated 25th February 2025, by Joseph Muchina Kamau, an intended interested party claiming to have purchased Title No. Gilgil Petrol Station R35/93/17, sought joinder under Order 1 Rule 10(2). Despite directions for written submissions, no submissions were filed. Relying on Rowlands Ndegwa v County Government of Nyeri, the court held that failure to file submissions amounted to failure to prosecute and dismissed the application with no costs. Judgment delivered via Microsoft Teams on 5th June 2025.

Key legal issues

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Whether the 3rd Defendant should be allowed to adduce additional documents and be recalled as a witness after plaintiffs closed their case

Holding

Allowed; the documents had already been alluded to in the hearing, no prejudice was demonstrated, and Article 50(1) and Section 3A favour substantive justice

Reasoning

Although procedural rules require early disclosure of documents to avoid ambush, the court retains discretion under Order 18 rule 10 and Section 146 of the Evidence Act to permit further evidence to secure a fair trial. The trial was at its tail end, increasing prejudice, but the plaintiffs did not demonstrate actual prejudice. Most documents were already on record and referred to during testimony, so their admission was not an ambush. The mistake of counsel should not be visited on the litigant.

p. 6
02

Whether the Intended Interested Party's application for joinder should be allowed

Holding

Dismissed for want of prosecution following failure to file submissions as directed

Reasoning

Directions had been taken on 8th April 2025 for the disposal of the joinder application by written submissions to be filed within 14 days, but no compliance occurred. The court held that failure to file submissions as ordered demonstrates inertia, inordinate delay and lack of interest, citing the test for dismissal for want of prosecution in Rowlands Ndegwa, and dismissed the application with no costs.

p. 6

Legal principles established

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  • A party must demonstrate actual prejudice to resist the introduction of further documents or recall of a witness at the tail end of a trial
  • A court retains power under Order 18 rule 10 and Section 146 of the Evidence Act to allow further documents and witnesses to secure a fair trial under Article 50(1)
  • Failure to file submissions as directed amounts to failure to prosecute an application, which is liable for dismissal

Court orders

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  1. 1.Leave granted to the 3rd Defendant to file his List and Bundle of Documents out of time
  2. 2.Documents to be filed and served upon the parties within 7 days of the ruling
  3. 3.Plaintiffs to have the right to file rejoinder documents within 7 days upon service
  4. 4.Parties to have the right to call or recall witnesses for further examination in chief, cross-examination or re-examination on matters arising in the documents
  5. 5.Application dated 25th February 2025 by the Intended Interested Party dismissed with no costs
  6. 6.Costs of the 4th February 2025 Application to abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A
  • Civil Procedure Rules 2010Order 18 Rule 10, Order 51 Rule 1, Order 1 Rule 10(2), Order 2 rule 13, Order 7 rule 5, Order 3, Order 7, Order 11
  • Evidence ActSection 146(4)
  • Constitution of Kenya 2010Articles 50(1), 159(2)(d)

Cases cited (12)

  • St. Patrick's Hill School Limited v Bank of Africa Kenya Limited
    [2018] KEHC 2539 (KLR)
  • Philip Chemwolo & Another v Augustine Kubende
    [1986] eKLR
  • Reg v Gaming Board Ex. Benaim
    1970 2 QB 417
  • Githere v Kimungu
    [1976-1985] E.A. 101
  • J.C. Patel v D. Joshi
    1952 19 EACA12
  • Bernard Mbaluka Ngala v Zuhura Njeri Kuria & 2 Others
    [2022] eKLR
  • Clement Maskati Mvuko v Republic
    [2018] eKLR
  • Alois Oceano D'sumba v Rajnikant Narshi Shah & another
    [2017] eKLR
  • Johana Kipkemei Too v Hellen Tum
    [2014] eKLR
  • Pinnacle Projects Limited v Presbyterian Church of East Africa, Ngong Parish & another
    [2019] eKLR
  • Rowlands Ndegwa and 4 Others v County Government of Nyeri and 3 Others; Agriculture, Fisheries and Food Authority & Another (Interested Parties)
    [2020] eKLR
  • Winnie Wanjiku Mwai v Attorney General & 3 Others
    [2016] eKLR
Jurisdiction invoked
Inherent jurisdiction under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Article 159(2)(d) and Article 50(1) of the Constitution

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, "Wanderi & another v Madisurp Investments & 7 others; Kamau (Intended Interested Party) (Environment & Land Case 13 of 2024)  (Environment and Land) [2025] KEELC 4262 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4262/eng@2025-06-05

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