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ELCOther· [2026] KEELC 4533 (KLR)

Kemama & another (Suing as Personal Representative of the Estate of Amadeo Raymond Kemama (Deceased)) v Guangxi Hydroelectric Construction Bureau Kenya Limited (Environment and Planning Civil Case E001 of 2025) [2026] KEELC 4533 (KLR)

Environment and Land Court
16 July 2026
OMOguttu Mboya
1,789 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed you cannot sneak rejected documents back into evidence during re-examination; that stage is only for clarification.

What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Meru addresses two elementary questions of evidence arising during the hearing of a suit: whether the court was functus officio regarding the production of documents marked for identification, and whether a witness may tender new documents during re-examination. During examination-in-chief, PW1 sought to produce documents from a list and bundle; the defendant objected to documents 3 and 4, and the court upheld the objection, marking them PMFI-3 and 4. During re-examination, plaintiffs' counsel attempted to have PW1 produce the marked documents, contending Section 146(3) of the Evidence Act permitted production of new evidence. The defendant opposed, arguing the court was functus officio and that production during re-examination was legally untenable. The court agreed with the defendant. Relying on Section 146(3) and the Court of Appeal's decision in Telkom Kenya Ltd v Ochanda, it held that the admissibility question had been dealt with finality, so the court could not revisit it; the proper course, if any, was an application to recall the witness. It further held that re-examination is confined to explaining matters raised in cross-examination: no new oral evidence may be introduced and no documentary exhibit tendered. The objection was upheld, production of PMFI-3 and 4 during re-examination was declined, and costs were awarded to the defendant. The judge lamented the waste of judicial time and suggested the Law Society of Kenya introduce refresher courses on evidence and civil procedure.

Key legal issues

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01

Whether the doctrine of functus officio barred the court from revisiting the production of PMFI-3 and 4

Holding

Yes. The question of admissibility had been addressed with finality in an earlier ruling; the court could not revisit it, and counsel could not defeat that ruling by side-wind during re-examination.

Reasoning

The court had already ruled on the admissibility of documents 3 and 4 upon objection during examination-in-chief, marking them for identification. Having performed its duty on that question, the court was functus officio in respect of it. The plaintiff's proper recourse, if any, was to seek recall of the witness, not to reintroduce the documents during re-examination.

p. 3
02

Whether a witness can tender and produce a new document (exhibit) during re-examination

Holding

No. Re-examination is for clarification of matters arising in cross-examination; neither new oral evidence nor a documentary exhibit may be introduced.

Reasoning

Section 146(3) of the Evidence Act confines re-examination to the explanation of matters referred to in cross-examination, with any new matter permitted by the court opening further cross-examination. Taking evidence involves three stages - examination-in-chief (where exhibits are tendered), cross-examination (testing credibility), and re-examination (clarification only). Production of documents during re-examination is therefore legally untenable and unorthodox.

p. 4

Legal principles established

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  • The scope of re-examination is directed to explaining matters referred to in cross-examination; no new oral or documentary evidence may be introduced during re-examination
  • Once a court has ruled on the admissibility of documents, it is functus officio on that question and cannot revisit it in the same proceedings

Court orders

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  1. 1.The objection taken by learned counsel for the defendant be and is hereby upheld
  2. 2.The intended production of documents numbers [3] and [4] during re-examination is declined
  3. 3.Costs of the objection are awarded to the Defendant

Authorities

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Legislation

  • Evidence Act, Chapter 80, Laws of KenyaSection 146(3)
  • Evidence Act, Chapter 80, Laws of KenyaSection 146(4)

Cases cited (2)

  • Telkom Kenya Ltd v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd)
    [2014] KECA 600 (KLR)
  • Jersey Evening Post Ltd Vs Ai Thani
    [2002] JLR 542
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; constitutional duty of the court to render rulings

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, "Kemama & another (Suing as Personal Representative of the Estate of Amadeo Raymond Kemama (Deceased)) v Guangxi Hydroelectric Construction Bureau Kenya Limited (Environment and Planning Civil Case E001 of 2025) [2026] KEELC 4533 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4533/eng@2026-07-16

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