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ELCPartially AllowedKerugoya ELCLA No. 052 of 2024· [2026] KEELC 3982 (KLR)

Mugera v Bingwa Sacco Society Ltd & another (Land Case Appeal 052 of 2024) [2026] KEELC 3982 (KLR)

Environment and Land Court
1 July 2026
5,078 words in judgment
View original judgmentRead on Kenya Law Watch case
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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 is a first appeal from the ruling of Hon. Martha Mutuku, CM, delivered on 3rd September 2024 in Kerugoya CMCC No. 40 of 2012, in which the trial magistrate expunged the 1st defendant's re-arranged trial bundle from the record, dismissed the defendant's application dated 28th May 2024, allowed the plaintiff's application dated 14th May 2024, and ordered the defendant to bear costs. The trial court had relied on the Salat decision to hold that documents filed without leave could not be sanitized. S. M. Kibunja, ELC Judge, allowed the appeal in part. The court held that the trial magistrate failed to exercise discretion judiciously: she overlooked the appellant's replying affidavit sworn 28th May 2024, treated the entire re-arranged bundle as fresh evidence without interrogating the disputed documents, and relied on distinguishable authority. The court found the 18th May 2023 leave was not a blanket authorization for fresh evidence, and that the three additional plan and building approval documents filed without leave after closure of the plaintiff's case would have prejudiced the respondent and had to be expunged. However, documents in the bundle filed on 17th July 2023 that appeared in the re-arranged bundle were to be taken as properly filed. The ruling and orders of 3rd September 2024 were set aside and substituted with limited orders on both applications. Each party was ordered to bear its own costs in the appeal.

Key legal issues

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01

Whether the trial magistrate's failure to consider the replying affidavit sworn 28th May 2024 amounted to an erroneous exercise of discretion

Holding

Yes - the affidavit was part of the material properly before the court and its consideration was mandatory; its omission vitiated the discretion.

Reasoning

The trial court proceeded on the premise that the appellant had filed no response to the plaintiff's application. The record contained the replying affidavit of 28th May 2024 explaining the filing of the re-arranged bundle, acknowledging the additional documents and offering witness recall. Failure to consider relevant material inevitably affected the exercise of discretion.

p. 20
02

Whether the trial magistrate's reliance on the Salat decision was proper

Holding

No - Salat was materially distinguishable as it concerned institution of an appeal outside mandatory statutory timelines, not regularization of documents within ongoing proceedings.

Reasoning

The Supreme Court in Salat dealt with a fresh appeal filed outside jurisdictional timelines. Here the court was confronted with filing and regularization of documentary evidence within ongoing proceedings, where the trial court retained broad discretionary powers to admit additional documents where justice so demanded.

p. 23
03

Whether outright expungement of the entire bundle was proportionate

Holding

No - the prejudice was curable and less restrictive measures were available; only the three documents filed without leave after closure of the plaintiff's case were to be expunged.

Reasoning

At the time of the ruling the respondent had closed its case but no defence witness had testified. Expunging the entire bundle crippled the defence. Documents filed and served within time (the 17th July 2023 bundle) could properly be taken as filed, while the three additional documents filed without leave were expunged.

p. 21

Legal principles established

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  • On a first appeal, the court's duty is to re-evaluate the evidence afresh and draw its own conclusions while bearing in mind it did not see or hear the witnesses.
  • An appellate court will not lightly interfere with judicial discretion unless misdirection in law, consideration of irrelevant matters, failure to consider relevant matters, wrong principles, or a plainly wrong conclusion is demonstrated.
  • Leave granted to rename and arrange a bundle is not a blanket authorization to introduce fresh evidence after closure of the other party's case.
  • Courts must balance procedural orderliness against substantive justice and prefer less restrictive case management measures where prejudice is capable of cure.

Court orders

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  1. 1.The appeal is allowed.
  2. 2.The ruling and orders of the trial court of 3rd September 2024 are set aside.
  3. 3.The plaintiff's/respondent's application dated 14th May 2024 is allowed limited to striking out the three additional documents (receipt for Kshs. 16,000/= for plan approval for Plot No. 55 dated 17th October 2014, building plan approval form stamped by the Physical Planner on 9th September 2014, and approved building plan with receipt dated 5th September 2014) from the 1st defendant's/appellant's re-arranged bundle filed on 26th September 2023.
  4. 4.The 1st defendant's/appellant's application dated 28th May 2024 is allowed limited to taking as properly filed the documents contained in the bundle filed on 17th July 2023 that are in the said re-arranged bundle filed on 26th September 2023.
  5. 5.The three new or additional documents filed without leave are expunged from the trial court record.
  6. 6.Each party shall bear his own costs in the appeal.

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure Act, Chapter 21, Laws of KenyaSections 1A, 1B, 3A, 27
  • Civil Procedure RulesOrder 11

Cases cited (3)

  • Nicholas Kiptoo Arap Korir Salat versus Independent Electoral and Boundaries Commission & 7 Others
    (2014) eKLR
  • Tana Teachers Co-operative Savings and Credit Society Limited versus Adriano Muchiri
    (2018) eKLR
  • Selle & Another versus Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
On appeal from
Chief Magistrate's Court, Kerugoya
Kerugoya CMCC No. 40 of 2012
Jurisdiction invoked
First appellate jurisdiction over appeals from the Magistrates' Court in Environment and Land matters (ELC Act; Civil Procedure Act)

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, "Mugera v Bingwa Sacco Society Ltd & another (Land Case Appeal 052 of 2024) [2026] KEELC 3982 (KLR)", Case Analysis (2026). Kerugoya ELCLA No. 052 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3982/eng@2026-07-01

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