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ELCOtherELC NO 114 OF 2013· [2025] KEELC 6351 (KLR)

Shah v Shah (Environment and Land Case 114 of 2013) [2025] KEELC 6351 (KLR)

Environment and Land Court
21 May 2025
JOJUDY OMANGE
1,128 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This interlocutory ruling by the Environment and Land Court arose from repeated objections during the hearing of a 2013 land suit that a defence witness was giving evidence not covered by his witness statement, amounting to alleged trial by ambush. The plaintiff's counsel, Mr Muriithi, objected that the witness kept introducing matters absent from his statement; the defendant's counsel, Mr Rebello, responded that the evidence merely clarified issues first raised during cross-examination of earlier witnesses. Justice Judy Omange restated the governing framework: Article 159 of the Constitution (justice for all, no delay, no undue regard to technicalities), Article 50 (fair hearing), Sections 62 and 146 of the Evidence Act, Sections 1A and 1B of the Civil Procedure Act, and paragraphs 12(a)(1) and 12(a)(11) of the ELC Practice Directions. The court distilled guiding principles: parties should file comprehensive witness statements adequate for evidence-in-chief; oral evidence remains permissible under Section 62 but a witness seeking to add to a filed statement must apply to the court with reasons, which may be done orally before hearing; and the court enjoys a wide, case-by-case discretion under Section 146 guided by Article 159. Finding the explanation that the issues emerged in cross-examination reasonable, the court allowed the witness to give additional evidence only insofar as it related to those additional issues. Both counsel were granted 14 days' leave to file additional witness statements, with mention on 9 June 2025 and hearing on 10 July 2025. No costs order was made.

Key legal issues

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01

Whether evidence outside a filed witness statement is admissible

Holding

Yes, but only with leave of the court on reasons being given; here the explanation that issues arose in cross-examination was reasonable

Reasoning

The court reconciled Article 159's imperative against technicalities and delay with the right to a fair hearing under Article 50 and the Evidence Act's scheme. Written statements remain the primary mode of evidence-in-chief under the Practice Directions, but Section 62 preserves oral evidence and Section 146 gives the court discretion to permit further examination. Leave may be sought orally before hearing to promote expedition. The discretion is exercised case by case, guided by the overriding objectives of the Civil Procedure Act.

p. 5
02

Whether the defence witness's evidence amounted to trial by ambush

Holding

No, to the extent it responded to matters first raised in cross-examination of earlier witnesses

Reasoning

Counsel for the defendant explained that the impugned evidence arose from cross-examination of earlier witnesses and could not have been anticipated in the witness statement. The court accepted this as a reasonable explanation and confined the witness's additional evidence strictly to those matters, protecting the plaintiff from ambush while avoiding procedural technicality.

p. 6

Legal principles established

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  • Witness statements should be comprehensive and adequate for evidence-in-chief; oral evidence beyond them requires leave of the court with reasons, which may be sought orally before hearing
  • The court has a wide discretion under Section 146 of the Evidence Act to permit additional oral evidence, guided by Article 159 of the Constitution and Sections 1A and 1B of the Civil Procedure Act
  • The ELC Practice Directions permitting adoption of witness statements as evidence-in-chief do not outlaw oral evidence

Court orders

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  1. 1.The defence witness was allowed to give additional evidence only in so far as it relates to the additional issues raised in cross examination
  2. 2.Parties granted 14 days each (to file additional witness statements)
  3. 3.Mention on 9/6/2025 and hearing on 10/7/2025

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 50
  • Evidence ActSection 62
  • Evidence ActSection 146
  • Environment and Land Court Practice DirectionsParagraph 12(a)(1) and 12(a)(11)
  • Civil Procedure ActSections 1A and 1B
Jurisdiction invoked
Article 159 of the Constitution of Kenya, 2010

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, "Shah v Shah (Environment and Land Case 114 of 2013) [2025] KEELC 6351 (KLR)", Case Analysis (2025). ELC NO 114 OF 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6351/eng@2025-05-21

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