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ELCAllowedELC CASE NO. E028 OF 2020· [2026] KEELC 4883 (KLR)

Kiilu & another (Suing as Personal Representatives of the Estate of Gideon Kiilu Ndolo (Deceased)) v Kyule & 2 others (Environment and Land Case E028 of 2020) [2026] KEELC 4883 (KLR)

Environment and Land Court
29 July 2026
1,373 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed handwriting expert evidence mid-trial, confirming that a party can still strengthen its case before it closes.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (N.A. Matheka, J) on a notice of motion dated 25th April 2025 in ELC Case No. E028 of 2020, a land dispute that was partly heard. The Plaintiffs sought leave to have a document examiner/handwriting expert examine and report on the 1st Defendant's signatures on four documents: a sale agreement dated 4th November 1988, an agreement dated 17th May 2011, the 1st Defendant's witness statement dated 18th July 2022, and a sale agreement dated 17th July 1997. The Plaintiffs argued the report was material, the case was not closed, and no prejudice would befall the Defendants, who had yet to testify. The Respondents opposed, contending all Plaintiffs' witnesses had testified and the application was an afterthought that should have been raised at pre-trial. The court observed that the Plaintiffs' case was not closed, and that even if it were, Section 146(4) of the Evidence Act permits recall of witnesses. It applied the Ladd v Marshall principles as adopted in Mzee Wanje v Saikwa and the additional-evidence guidelines laid down by the Supreme Court in Mohamed Abdi Mahamud, concluding the expert report was relevant, credible, capable of influencing the outcome, and would not prejudice the Defendants. The court allowed the application and ordered that costs shall follow the outcome of the main suit.

Key legal issues

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01

Whether additional expert evidence may be admitted at trial after several witnesses have testified

Holding

Yes. The court applied the principles in Ladd v Marshall and the Mohamed Abdi Mahamud guidelines, finding the expert report relevant, credible, obtainable only when doubt arose, and non-prejudicial.

Reasoning

The court noted the Plaintiffs' case was not closed, and even if it were, Section 146(4) of the Evidence Act permits recall of witnesses. Applying the additional-evidence principles, it found the expert report directly relevant, capable of influencing the outcome, credible, and not voluminous. It held the Defendants would not be prejudiced as they had not yet testified and could respond to the report, and that allowing it serves substantive justice.

p. 7

Legal principles established

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  • A court may recall a witness even after close of a party's case for further examination, as provided by Section 146(4) of the Evidence Act
  • A party should be allowed to prosecute its case to its satisfaction, including calling witnesses and producing documents deemed necessary, where no prejudice results

Court orders

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  1. 1.The application dated 25th April 2025 is allowed; leave granted for the Plaintiffs to have a document examiner/handwriting expert examine and report on the 1st Defendant's signatures on the listed documents
  2. 2.Costs shall follow the outcome of the main suit
Jurisdiction invoked
Order 51 Rule 1 of The Civil Procedure Rules; Sections 1A, 1B & 3A of The Civil Procedure Act; Section 4 of The Fair Administrative Action Act; Articles 47, 48 & 159 of The Constitution of Kenya, 2010

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, "Kiilu & another (Suing as Personal Representatives of the Estate of Gideon Kiilu Ndolo (Deceased)) v Kyule & 2 others (Environment and Land Case E028 of 2020) [2026] KEELC 4883 (KLR)", Case Analysis (2026). ELC CASE NO. E028 OF 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4883/eng@2026-07-29

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