Registered Trustees of the Sisters of Mercy v Sanlam Life Assurance Limited & another (Environment and Land Case 108 of 2017) [2025] KEELC 8597 (KLR)
The bottom line
#Kenya's Environment and Land Court refused a defendant's late attempt to add witnesses and documents nine years after trial preparation ended, protecting the plaintiff from unfair surprise.
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 1st Defendant to file additional evidence after the Plaintiff's witnesses had tendered their evidence
Key legal issues
#Whether leave should be granted to introduce additional witnesses and documents after the plaintiff's case had closed
The application was unmerited; leave was refused because allowing it would prejudice the plaintiff and amount to 'stealing a match', with no plausible explanation for the delay
The court associated itself with the Raila Odinga test (fair and level playing field; caution where new material is substantial) and the Marcus Kibuku Nimrod criteria (reason for delay, stage of proceedings, prejudice). Pleadings closed nine years prior, four plaintiff witnesses had testified, the documents were voluminous, and the report sought to be produced was prepared during failed settlement negotiations. The fresh evidence sought to cure a lacuna in the defendant's case.
Whether the Mapsoft Systems Ltd report (17th January 2025) is privileged as a without-prejudice settlement document
The court accepted it would be unjust to allow its production, treating it as prepared during out-of-court settlement negotiations
The plaintiff contended the report was jointly prepared during failed settlement attempts and was privileged under Section 23 of the Evidence Act. The court cited the Kirui v Mwangi test that protection attaches only to documents made in furtherance of settlement negotiations, and found producing a report prepared during negotiations would amount to stealing a match on the plaintiff.
Legal principles established
#- A trial court may, in keeping with Article 50's fair-hearing guarantee, allow late introduction of statements and documents, considering the reason for the delay, the stage of proceedings and the prejudice to the other party
- A document attracts 'without prejudice' protection only if it was made in furtherance of negotiations to settle a dispute
Court orders
#- 1.The 1st Defendant's Notice of Motion dated 8th July 2025 seeking leave to file a supplementary list of witnesses and witness statements is disallowed/unmerited
- 2.Costs to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent discretion of the trial court under the Civil Procedure Rules, informed by Article 50 of the Constitution (fair hearing)
Relief refused
#Leave to avail/produce a supplementary list of witnesses and witness statements post conclusion of pre-trial procedures, and to deem the supplementary witness statements and list of documents duly filed and served
It would be prejudicial to the Plaintiff, whose four witnesses had already testified; the documents were voluminous, sought to fill a lacuna in the 1st Defendant's case, and no plausible reason was given for the delay of nine years after the pre-trial conference; document No. 8 was prepared during out-of-court settlement negotiations
Costs
Costs will be in the cause.
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.
In the foregoing, I find the instant Notice of Motion application unmerited and will disallow it.
Costs will be in the cause.
I opine that it will amount to stealing a match against the Plaintifi if the 1st Defendant was allowed to present a report which had been prepared during the period the parties were negotiating out of Court.
I further find that the 1st Defendant has failed to provide plausible reasons why it seeks to present fresh witnesses and documents, nine (9) years after the pre trial conference.
Each case will however be decided on its own peculiar circumstances and among the issues that the Court will take into account before granting such leave may include the reason why the statements and documents were not filed at the right time, the stage of the proceedings and the prejudice that may be caused to the other party.
Issues in the judgment
#The re Estate of the Late William Morogo authority is listed twice identically in the 1st Defendant's list of citations
The case number and full party names are not stated in the judgment text provided; the parties are referred to only as Plaintiff, 1st Defendant and 2nd Defendant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Registered Trustees of the Sisters of Mercy v Sanlam Life Assurance Limited & another (Environment and Land Case 108 of 2017) [2025] KEELC 8597 (KLR)", Case Analysis (2025). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8597/eng@2025-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.