Njambi v Waweru (Environment and Land Case 719 of 2016) [2025] KEELC 6634 (KLR)
The bottom line
#A Kenyan court refused to let a defendant add new evidence after trial closed, ruling the late application was a gap-filling afterthought that would unfairly prejudice the other side.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court should exercise its discretion to allow the Defendant to file additional evidence after the close of the hearing
Key legal issues
#Whether the Defendant should be granted leave to adduce additional evidence after the close of the hearing
The application was dismissed; the Defendant failed to meet the threshold of reasonable diligence, materiality and credibility, and the application was a late attempt to fill evidentiary gaps
The court applied the principles in Susan Wavinya Mutavi, Mohammed Abdi Mahamud and related authorities. It found the Defendant knew of the alleged riparian character and fraud as early as 2017/2018, had ample opportunity to marshal his evidence before the hearing, and that no court direction to certify the map existed. Admitting untested maps would deprive the Plaintiff of cross-examination and his Article 50(1) right to a fair hearing, and would offend the finality of the trial process.
Whether the documents sought to be adduced are material and credible
The documents were neither credible nor probative: the certified Nairobi Block 190 map was illegible and no nexus to Plot No. 675 was shown
The court held the evidentiary process demands documents be subjected to scrutiny through cross-examination and procedural safeguards. The certified map was illegible and of little probative value, and the Defendant failed to demonstrate any connection between Nairobi Block 190 and the suit property, Plot No. 675, so the documents could not assist in resolving the real controversy.
Legal principles established
#- The jurisdiction to re-open a case and admit additional evidence is discretionary, to be exercised judiciously and only in exceptional circumstances where the ends of justice demand and the opposing party will not suffer prejudice incapable of compensation by costs
- A plea to re-open a case to fill gaps in evidence, or founded on inordinate and unexplained delay, will be rejected
- The applicant must show the additional evidence could not have been obtained with reasonable diligence at the time of hearing, that it would probably have an important influence on the result, and that it is apparently credible
Court orders
#- 1.The Defendant's Notice of Motion dated 26th May 2025 is dismissed
- 2.Costs of the application are awarded to the Plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 7 Rule 5(d) and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Articles 50 and 159(2)(d) of the Constitution
Relief refused
#Leave to file additional evidence (bundle of documents) in support of the defence and counterclaim
Application was an afterthought brought too late to fill gaps in the Defendant's case; diligence not shown; admission would prejudice the Plaintiff's right to a fair hearing
Leave to file a certified copy of the map for Nairobi Block 190
The map is illegible, of little probative value, and no nexus was demonstrated between Nairobi Block 190 and Plot No. 675, the suit property
Leave to file the alleged fraudulent scheme map and the Nairobi City Council map
Defendant was aware of the alleged fraud as early as 2017/2018 and could have obtained the documents with reasonable diligence; the court found no direction had been issued requiring a certified map
Costs
The application is dismissed with costs (costs to the Plaintiff).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, and for the reasons stated above, this Court finds no merit in the Defendant’s application dated 26th May 2025. The same is hereby dismissed with costs.
the present application is an afterthought, brought too late in the day and intended merely to fill gaps in the Defendant’s case after the close of the hearing
the Defendant has not demonstrated any nexus between Nairobi Block 190 and Plot No. 675, the suit property in dispute
To admit them now would deprive the Plaintifi of his right anchored on Article 50(1) of the Constitution, which guarantees a fair and public hearing, and protected by the principles of natural justice.
Issues in the judgment
#The Plaintiff's Replying Affidavit states the suit was filed on '29th June 206', an apparent typographical error for 2016 (the Plaint is dated 27th June 2016)
The judgment refers to hearing dates in 'October 2024 and January 2025' although the record elsewhere consistently gives the hearing dates as 9th July 2024 and 21st January 2025
Counsel is recorded citing Kigo vs Attorney General & 4 others with differing citations ('[2025] KECA 26' at paragraph 22 and '[2025] KECA 267 (KLR)' at paragraph 36)
Article 50 of the Constitution is misrendered as 'Article 5o' in the Plaintiff's submissions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njambi v Waweru (Environment and Land Case 719 of 2016) [2025] KEELC 6634 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6634/eng@2025-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.