Tunoi v Cherono (Land Case E087 of 2025) [2026] KEELC 4634 (KLR)
The bottom line
#A Kenyan land court ruled that disputed documents can be produced in evidence during trial, with any challenge to their admissibility decided later in the final judgment.
What this practically means
#Executive summary
#Key legal issues
#Proper procedure for handling trial objections to admissibility of evidence
Objections should not ordinarily halt proceedings; the Court notes the objection, allows tentative production, and determines admissibility in the final judgment
Relying on the Supreme Court of India's decision in Bipin Shantilal Panchal vs. State of Gujarat, which the Court found profoundly persuasive and adopted mutatis mutandis, the Court held that instant determination of admissibility objections causes delay and prejudice, whereas deferring the objection preserves the evidence on record for appellate review and advances the overriding objective of the CPA, the ELC Act and Article 159(2)(b) and (d) of the Constitution. Exceptions exist for objections that are plain and obvious or require instant determination.
Legal effect of production of a document as an exhibit
Production as an exhibit is not the ultimate stage; the ultimate stage is when the Court finally determines whether the document has surmounted the admissibility and relevancy tests
The Court reasoned that the tenor of production is not synonymous with foreclosure of a challenge to admissibility or relevancy. Even if contested documents are produced as exhibits, the objector retains the right to challenge them even at submission level, such objection being deemed a question of law. The Court cited Kenneth Nyaga Mwige vs. Austin Kiguta & 2 others in support.
Timing of challenges to relevancy versus admissibility
Relevancy, being a question of fact, may not appropriately be determined before the Court finally renders itself; determining it earlier would put the cart before the horse
Drawing on Sarkar on Evidence (13th Edition) on the Indian Evidence Act, which is para materia with Kenya's Evidence Act, the Court cautioned that questions of relevancy cannot be decided before issues are framed and evidence offered, unlike pure questions of law of admissibility which can possibly be determined before final judgment.
Purpose of Case Management Conference under Order 11 of the Civil Procedure Rules
The CMC exists to promote expeditious disposal and give effect to the oxygen principle; trial objections should be intimated at the CMC
The Court held it unfortunate that the intention to raise the trial objections was not intimated during the CMC, contrary to Order 11 of the CPR and the overriding objective of the CPA (section 1A) and Article 159(2)(d) of the Constitution, which condemn trials by ambush and technicalities. The Court directed that such intentions be raised at the CMC for appropriate directions.
Legal principles established
#- Production of a document as an exhibit does not foreclose later challenge to its admissibility, relevancy or propensity; such challenge survives production and remains live until final judgment
- Trial objections to admissibility should ordinarily be noted, the document produced tentatively as an exhibit, and the objection determined at the final judgment stage rather than by staying the hearing
- Section 175 of the Evidence Act is an inbuilt safeguard: improper admission or rejection of evidence is not of itself a ground for a new trial or reversal
- A party whose trial objection is overruled may preserve it by a continuing or running objection for the appellate record
Court orders
#- 1.Production of the contested documents (Plaintiff's Exhibits 2 and 4) allowed as exhibits, with determination of the trial objection deferred and subsumed into the final judgment
- 2.Direction that intention to raise trial objections should be raised at the Case Management Conference, even without prompting by the presiding Judge
- 3.Directive that, unless an objection falls within the cluster determinable instantly (plain and obvious; not demanding protracted interrogation of evidential issues; or necessarily requiring instant determination), the Objector shall call the Court's attention to the specific objection with reasons, cross-examine the opponent's witness on it, and determination shall be deferred and subsumed into the judgment
- Jurisdiction invoked
- Environment and Land Court Act (section 3); Civil Procedure Act (sections 1A, 1B); Article 159(2)(b) and (2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tunoi v Cherono (Land Case E087 of 2025) [2026] KEELC 4634 (KLR)", Case Analysis (2026). Eldoret ELCLC Number E087 of 2025 – CNO (R). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4634/eng@2026-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.