Malo Malo BBQ Swahili Cuisine Ltd v Captain Real Estate Company Ltd (Environment and Land Case E289 of 2024) [2026] KEELC 3939 (KLR)
The bottom line
#A Kenyan court refused to admit a secretly recorded conversation as late evidence in a land dispute because it violated the other party's privacy rights.
What this practically means
#Executive summary
#Key legal issues
#Threshold for admitting additional evidence after close of pleadings
The Plaintiff failed to meet the threshold; the discretion is exercised cautiously and the evidence here was inadmissible and prejudicial
Leave to adduce additional evidence after close of pleadings is a discretionary power exercised in furtherance of the overriding objective. Courts are extremely cautious in permitting late filing to avoid fishing expeditions, manufactured documents, trial by ambush and delay. Here the audio was secretly recorded during a without-prejudice negotiation without the Defendant's consent, violating Articles 31(c) and (d) of the Constitution and section 28(2)(c) of the Data Protection Act. Admitting it would prejudice the Defendant; the application was unmerited.
Legal principles established
#- Additional evidence sought after close of pleadings must not be prejudicial to the opposing party and must not be evidence collected without consent or communicated on a without-prejudice basis
- Indirect collection of data is permissible only with the subject's consent under the Data Protection Act, and recording a person's communications without consent infringes the constitutional right to privacy
Court orders
#- 1.The Notice of Motion dated 19th January 2026 is dismissed (leave to file and serve additional audio evidence is disallowed)
- 2.Costs will be in the cause
- Jurisdiction invoked
- Environment and Land Court Act, Section 3(1); Civil Procedure Act, Sections 1A and 1B; Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Malo Malo BBQ Swahili Cuisine Ltd v Captain Real Estate Company Ltd (Environment and Land Case E289 of 2024) [2026] KEELC 3939 (KLR)", Case Analysis (2026). ELC L Civil Case No. E289 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3939/eng@2026-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.