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ELCDismissedAppeal dated 30th October, 2024 from Nakuru CMC ELC E017 of 2023· [2025] KEELC 4774 (KLR)

Njogu v Mburu & another (Environment and Land Appeal E060 of 2024) [2025] KEELC 4774 (KLR)

Environment and Land Court
26 June 2025
AOAntony O. Ombwayo
2,180 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that parties can still add documents mid-hearing if the other side keeps a fair chance to respond.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Nakuru, presided over by Antony O. Ombwayo J, against the ruling of Hon. E. S. Soita SRM delivered on 1st October 2024 in Nakuru CMC ELC E017 of 2023. The trial court had allowed an application by counsel for the 1st Respondent seeking leave to file a supplementary list and bundle of documents, made after the Plaintiff's examination in chief had concluded but before cross-examination began. The Appellant raised nine grounds of appeal, contending that the ruling violated her right to a fair trial, was made without consideration of her responses and submissions, permitted a second bite of the cherry after rebuttal by cross-examination, was irregularly sworn by counsel rather than the Respondent, and introduced 34 documents without a prayer for recalling the witness. Both parties filed written submissions by direction of the court. The Appellant relied on Section 146(1) of the Evidence Act and Order 18 of the Civil Procedure Rules, while the Respondent relied on the overriding objective and the court's discretion under Order 11 Rule 3(1)(h) and Order 3 Rule 2. The court framed the sole issue as whether the trial court arrived at the correct finding. It found that the matter had not considerably taken off, PW1 was still on his feet and stood down, and the Appellant would have sufficient opportunity to rebut the documents through cross-examination, so no prejudice arose. Applying the overriding objective in Sections 3A and 3B of the Appellate Jurisdiction Act and the fair-hearing principle in Gichuhi v Gichuhi, the court held the trial magistrate did not err. The appeal was dismissed with costs.

Key legal issues

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01

Whether leave to file supplementary documents after the hearing had commenced was properly granted

Holding

Yes - the application was made before close of the Plaintiff's case, only one witness had testified, and the Appellant would have ample opportunity to rebut through cross-examination, so no prejudice arose

Reasoning

The court noted PW1 had been stood down before cross-examination and the hearing had not considerably taken off when the application was made. Guided by the overriding objective principle under Sections 3A and 3B of the Appellate Jurisdiction Act and the fair-hearing principle in Gichuhi v Gichuhi, the magistrate's discretionary decision to allow the filing was within the range of proper exercise, and the Appellant failed to demonstrate actual prejudice.

p. 4
02

Whether the number of documents (34) or lack of a prayer to recall the witness vitiated the ruling

Holding

No - the size of the bundle was immaterial given time to review; the application was strictly for filing documents and admissibility remained subject to trial scrutiny

Reasoning

The court found that the Appellant had sufficient time to go through the documents prior to continuing cross-examination since the witness had been stood down. The application related only to filing of documents, not recalling of witnesses, and the relevance and admissibility of each document would be tested at trial during examination and cross-examination.

p. 4

Legal principles established

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  • Leave to file additional documents may be granted even after commencement of hearing where the witness is yet to be cross-examined and no prejudice is demonstrated, guided by the overriding objective.
  • The first appellate court must re-consider and re-analyse the evidence presented before the trial court to arrive at its own conclusions.

Court orders

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  1. 1.The appeal is dismissed with costs
  2. 2.It is so ordered
On appeal from
Chief Magistrate's Court, Nakuru (Environment and Land)
Nakuru CMC ELC E017 of 2023
Jurisdiction invoked
First appellate jurisdiction over the ruling of the Senior Resident Magistrate in Nakuru CMC ELC E017 of 2023

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, "Njogu v Mburu & another (Environment and Land Appeal E060 of 2024) [2025] KEELC 4774 (KLR)", Case Analysis (2025). Appeal dated 30th October, 2024 from Nakuru CMC ELC E017 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4774/eng@2025-06-26

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