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ELCDismissedKAPSABET ELCLC NO. E012 OF 2025· [2026] KEELC 3991 (KLR)

Mutwol (Suing as the administrator of the Estate of Late Paul Malakwen Mutwol-Deceased) v Arap Busieney (Land Case E012 of 2025) [2026] KEELC 3991 (KLR)

Environment and Land Court
30 June 2026
GOG M A Ongondo
1,624 words in judgment
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The bottom line

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A Kenyan court refused to force a party to produce original sale agreements it swore it did not have, telling the applicant to rely on secondary evidence at trial instead.

What this practically means

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Executive summary

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The applicant/plaintiff, by a Notice of Motion dated 9th October 2025, sought orders compelling the respondent/defendant to produce the original copies of sale agreements relied upon in these land proceedings, releasing them to forensic examination by an agreed or court-appointed independent expert, bearing the examination costs in the first instance with costs in the cause, and staying the hearing of the main suit pending the examination. The application was supported by the applicant's affidavit citing the disputed authenticity of the sale agreement introduced by the respondent. The respondent opposed via a replying affidavit sworn on 17th November 2025, averring that the original documents of land were retained by the deceased and the lands office, that he was unable to produce them, and that the applicant was seeking to gather evidence through the court. Written submissions were directed, with the applicant invoking sections 107, 108 and 109 of the Evidence Act, section 13 of the Environment and Land Court Act, Order 16 Rule 6 of the Civil Procedure Rules, Article 50(1) of the Constitution, and authorities including Mutungi vs FEP Sacco and Re Estate of Jackson Kibor. The court held that pre-trial discovery is properly pursued at the case conference under Order 11 of the Civil Procedure Rules, in the spirit of Article 35(2)(b) of the Constitution; that since the respondent confirmed on oath that the original documents were not in his possession, custody or control, the law cannot compel a party to do the impossible; and that the applicant was on a fishing expedition. The application dated 9th October 2025 was disallowed with costs in the cause, with liberty noted to invoke the rules of secondary evidence and adverse inference at the hearing.

Key legal issues

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Whether the court can compel production of original sale agreements for forensic examination

Holding

The application was disallowed because the respondent swore that the original documents were retained by the deceased and the lands office and were not in his possession, custody or control; discovery should be pursued at the case conference under Order 11 of the Civil Procedure Rules, 2010

Reasoning

The court found that Order 11 provides for orders for discovery, production or inspection at the case conference, in the spirit of access to information under Article 35(2)(b) of the Constitution. Since the originals were admittedly not with the respondent, compelling production would be impossible. The applicant was instead at liberty to rely on the rules of secondary evidence and adverse inference at the hearing.

p. 9

Legal principles established

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  • A court cannot compel a party to produce original documents that the party has confirmed on oath are not in its possession, custody or control
  • Secondary evidence is permitted if a proper basis is laid as to why the original document is missing or not in the power of the witness to produce it
  • He who alleges must prove; a party cannot shift the burden of proof to the other side

Court orders

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  1. 1.The application dated 9th October 2025 is disallowed
  2. 2.Costs in the cause
Jurisdiction invoked
Section 13 of the Environment and Land Court Act, 2015 (2011) and section 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya

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, "Mutwol (Suing as the administrator of the Estate of Late Paul Malakwen Mutwol-Deceased) v Arap Busieney (Land Case E012 of 2025) [2026] KEELC 3991 (KLR)", Case Analysis (2026). KAPSABET ELCLC NO. E012 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3991/eng@2026-06-30

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