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ELCDismissedNot stated in the judgment· [2026] KEELC 329 (KLR)

Nduati & another v Makini & another (Environment and Land Case 528 of 2011) [2026] KEELC 329 (KLR)

High Court of Kenya
22 January 2026
AOA. Omollo
1,205 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court refused a defendant's late bid to add expert handwriting evidence after trial, because she couldn't prove diligence and the other side would be prejudiced.

What this practically means

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Executive summary

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The 1st Defendant, Dinna Bhoke Makini, moved the Court by Notice of Motion dated 19th September 2025 seeking to re-open her defence case after the hearing closed on 13th June 2025, so as to admit the original handwriting expert document examination report and recall DW2, the handwriting expert, for production and cross-examination. She explained that despite due diligence she could not trace the original report at the defence hearing and had only secondary evidence, and that the report was material and went to the root of the case, with no prejudice to the Respondents who could test it by cross-examination. The Plaintiffs opposed through a replying affidavit sworn by their advocate, Andrew Ombwayo, contending that the application was an afterthought made in bad faith to delay proceedings, that the Defendant had already been given several opportunities to recall the witness, and that reopening would prejudice them as they had exhausted cross-examination and rebuttal. The court reiterated the settled test: additional evidence after closure of trial is admitted sparingly, on sufficient cause, due diligence, materiality and absence of prejudice. It found the Applicant's new explanation contradicted her earlier position, that she had failed to clearly identify the annexed report as the document examined by the expert (the A2-A13 exhibits were missing and unmarked), and that reopening would substantially prejudice the Plaintiffs. Relying on Odinga, Torino Enterprises and Samuru Gaturo, the court dismissed the application with costs.

Key legal issues

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01

Whether additional evidence may be admitted after the close of trial by reopening a party's case

Holding

The application was refused; the Applicant did not show sufficient cause, due diligence or identification of the evidence, and the Plaintiffs would be prejudiced.

Reasoning

The court applied the settled test for reopening a case after closure: sufficient cause, diligence, materiality and absence of prejudice. The Applicant's explanation that the original report was missing contradicted her earlier claim that the witness was unavailable. She had been given several prior opportunities to recall DW2. Further, the annexed report could not be matched to the exhibits previously produced, and the Plaintiffs had closed their case with no opportunity for rebuttal.

p. 3
02

Whether the annexed handwriting expert report was properly identified as the document examined by the expert

Holding

No - the exhibits A2-A13 referred to in the report were absent from the annexures and no markings or arrows appeared on the documents.

Reasoning

The report stated that the expert examined signatures marked by red arrows on exhibits A2-A13 compared with standards B1-B2. Only the B1-B2 documents were annexed; none bore A2-A13 markings or arrows. The court therefore could not exercise its discretion in favour of the Applicant, since the purported new evidence was not shown to exist as annexed.

p. 3

Legal principles established

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  • Discretion to admit additional evidence after close of trial must be exercised sparingly and only where sufficient cause is shown, the evidence could not with reasonable diligence have been obtained earlier, the evidence is material, and the other party will not suffer unremediable prejudice
  • A party who has closed its case cannot be allowed to reopen it merely to fill gaps or repair weaknesses in its evidence

Court orders

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  1. 1.The application dated 19th September 2025 is dismissed
  2. 2.Costs of the application to the Plaintiff(s)
Jurisdiction invoked
Inherent discretion to admit additional evidence after close of trial; Articles 10, 20, 25(c), 50(1) and 159(2) of the Constitution invoked by the Applicant

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, "Nduati & another v Makini & another (Environment and Land Case 528 of 2011) [2026] KEELC 329 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/329/eng@2026-01-22

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