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ELCAllowedNot stated in the judgment· [2025] KEELC 6166 (KLR)

Koyop v Lomukerang & another (Environment and Land Case E008 of 2022) [2025] KEELC 6166 (KLR)

Environment and Land Court
24 September 2025
CNC.K. NZILI
949 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kitale court allowed a retired surveyor's report into a land trespass trial, showing Kenyan courts will admit late evidence when delay is explained and no one is prejudiced.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Kitale by C.K. Nzili J concerns an application dated 8/7/2025 by the plaintiff, Solomon Kiprugut Koyop, seeking leave to file out of time a county surveyor's report on trespass to land and to have the report produced by its maker. The surveyor visited the locus in quo on 20/1/2022 following an OB report but retired before supplying a typed report; a handwritten version was on file and a sketch map had already been produced through PW1. After PW1, PW2 and PW3 testified, counsel sought to summon the report's maker, prompting the application when it emerged he had retired. The court reviewed the principles for admitting additional evidence from Mohamed Abdi Mohamed (relevance, impact on the verdict, inability to obtain the evidence with reasonable diligence, credibility, non-voluminousness, absence of gap-filling, and proportionality/prejudice), alongside Safe Cargo, Peter Kariuki Githaiga, Mansukhalal Jesang Maru, Johana Kipkemei Too and Raila Amolo on compliance with timelines and avoidance of trial by ambush. Applying these, the court held that reopening an ongoing case is a discretionary exercise to be conducted judiciously; the defendants did not dispute the report's relevance or impact, showed no prejudice, and the delay was explained by the surveyor's retirement. The application was allowed with costs to the defendants in any event.

Key legal issues

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Whether new evidence (a retired county surveyor's report) may be admitted after the close of pleadings and part-heard testimony

Holding

The application was allowed because the evidence is relevant and impactful, the defendants showed no prejudice, the delay was explained, and it is in the interest of justice to grant the prayers.

Reasoning

The court applied the Mohamed Abdi Mohamed parameters for admitting new evidence. The defendants did not dispute the relevance or impact of the report and expressed no prejudice; the report would not fill gaps in the plaintiff's case; the delay was explained by the surveyor's retirement. The discretion to reopen an ongoing case must be exercised judiciously, and admission of the report best serves the interest of justice, with costs to the defendants.

p. 3

Legal principles established

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  • Whether or not to reopen an ongoing case is a discretion of the court to be exercised judiciously and in the interest of justice.
  • Additional evidence must be credible but need not be incontrovertible.

Court orders

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  1. 1.Application dated 8/7/2025 allowed; the surveyor's report may be filed out of time and produced by the maker
  2. 2.Costs to the defendant in any event

Authorities

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Legislation

  • Civil Procedure RulesOrder 11 Rule 7
  • Civil Procedure RulesOrders 3 and 7

Cases cited (7)

  • Mohamed Abdi Mohamed v Ahmed Mohamed & Others
    [2018] eKLR
  • Safe Cargo Ltd v Embakasi Properties Ltd & Others
    [2019] eKLR
  • Peter Kariuki Githaiga & Another v Betty Rashid
    [2016] eKLR
  • Mansukhalal Jesang Maru v Frank Wafula
    [2021] eKLR
  • Johana Kipkemei Too v Hellen Tum
    [2014] eKLR
  • Raila Amolo & another v Independent Electoral and Boundaries Commission
    [2013] eKLR
  • Susan Wavinya Mutavi v Isaac Njoroge & Another
    [2020] eKLR
Jurisdiction invoked
Inherent discretion of the court under the Civil Procedure Act and Civil Procedure Rules in an ongoing first-instance trial

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, "Koyop v Lomukerang & another (Environment and Land Case E008 of 2022) [2025] KEELC 6166 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6166/eng@2025-09-24

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