Cirtex Kenya Limited & another v Leparakwo & 6 others (Environment and Land Case 152 of 2018 & 691 of 2011 (Consolidated)) [2025] KEELC 5171 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that police officers can testify in civil land cases and late witness statements can still be admitted.
What this practically means
#Executive summary
#Key legal issues
#Admissibility and competence of a DCI officer's testimony and investigation report in civil proceedings
Corporal Osuri is a competent witness and his evidence is admissible; being a DCI officer does not render his evidence inadmissible or incompetent in a civil matter, and his testimony will be tested through cross-examination
Sections 125 and 127 of the Evidence Act make all persons competent unless incapable of understanding questions or giving rational answers. Admissibility turns on relevance under Section 5 of the Evidence Act, and the testimony goes to ownership of the suit property. The AG is entitled to call witnesses like any litigant; parallel criminal proceedings under Section 193A CPC do not bar the civil suit, and civil and criminal proceedings operate under distinct standards of proof.
Whether an effect of the civil court's findings would be to bind the criminal court trying Republic vs Fredrick Kimemia & Anor
The court's findings will not bind the criminal court, which applies a higher standard of proof and separate proceedings
Civil proceedings are decided on a balance of probabilities while criminal proceedings require proof beyond reasonable doubt. The Court of Appeal in Lalchand Fulchand Shah confirms concurrent civil and criminal proceedings may proceed unless one is oppressive, vexatious or an abuse of process. No such oppression or prejudice was demonstrated.
Whether a witness statement filed out of time and without leave should be struck out
The court exercised its discretion to admit the late-filed witness statement because the hearing had not commenced and no prejudice was shown
Although the 2nd Defendant was obligated to file witness statements within timelines and late filing would have been fatal had hearing commenced, the objection was raised before trial. Admitting the statement was the only option consistent with giving the defendant an opportunity to be heard, and no prejudice was demonstrated.
Legal principles established
#- The investigative role of the DCI does not preclude its officers from testifying in civil cases as to facts they have lawfully investigated where such facts are directly relevant
- Parallel criminal proceedings on the same subject matter do not bar the continuation of civil proceedings
- A first-instance civil court's decision is not binding on a criminal court, the two operating under distinct standards of proof
- Admissibility of evidence depends on relevance, which must be tested by the pleadings
Court orders
#- 1.The objection to the witness statement of Corporal Nicolaus Osuri and accompanying documents is dismissed
- 2.The objection to the witness statement of Trophimus Kiplimo (2nd Defendant in ELC 691 of 2011) is dismissed and the statement is allowed on record
- 3.The objection is dismissed with no order as to costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (disputes relating to land, L.R. No. 24968/2, IR 179264)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cirtex Kenya Limited & another v Leparakwo & 6 others (Environment and Land Case 152 of 2018 & 691 of 2011 (Consolidated)) [2025] KEELC 5171 (KLR)", Case Analysis (2025). ELC 152 of 2018 (consolidated with ELC 691 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5171/eng@2025-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.