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ELCPartially AllowedELCC No. E430 of 2022· [2026] KEELC 5379 (KLR)

Estuarine Estates Ltd v Ole Koiyaki & 2 others (Environment and Land Case 430 of 2022) [2026] KEELC 5379 (KLR)

Environment and Land Court
3 September 2026
3,104 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to strike out late-filed evidence in a Nairobi land dispute, preferring a full trial over procedural penalties, but demanded original allocation records.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Nairobi in ELCC No. E430 of 2022, delivered virtually on 3rd September 2026 by Hon. Mbogo C.G., Judge. The 1st defendant/applicant moved the court by notice of motion dated 5th March 2026 seeking, principally, the expungement of the 2nd defendant/respondent's list of witnesses, witness statement and bundles of documents filed outside the timelines fixed by a court order of 20th January 2026; in the alternative, leave to amend his defence and counterclaim; a stay of proceedings; production orders against the 3rd defendant/respondent, the DCI and the Directorate of Survey; and an order that parties appear with original ownership documents. The plaintiff/respondent, through counsel, conceded the documents were filed out of time but urged substantive justice, offering the applicant an opportunity to respond. The court, relying on Kivanga Estates Ltd v National Bank of Kenya, declined to expunge the documents, holding they were filed pursuant to a court order and are necessary for the full and final determination of the suit. The amendment prayer failed for want of a draft amended pleading. The stay was spent. Orders for the production of original records were granted against the 3rd defendant/respondent only, the DCI having no capacity as a non-party expert witness to take sides, and no bias having been demonstrated against the survey officer. The application partially succeeded; costs were in the cause, with further mention on 4th November 2026.

Key legal issues

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01

Whether late-filed documents should be expunged from the record

Holding

Expungement was declined; the documents were filed pursuant to a court order and are necessary for the full and final determination of the suit

Reasoning

The court acknowledged the delay in filing but held that it must balance the irregularity against the interest of justice. Relying on Kivanga Estates Ltd v National Bank of Kenya on the drastic nature of striking-out jurisdiction, it found that expunging documents needed for a full determination of the land dispute would not be an appropriate remedy, especially since the applicant may respond through amendment.

p. 10
02

Whether leave to amend the defence and counterclaim should issue

Holding

Amendment is available under Order 8 rule 3 but the prayer failed because no draft amended pleading was annexed

Reasoning

Order 8 rule 3 permits amendment at any stage on just terms. The court noted the applicant should have annexed a draft to enable assessment of the scope of amendments, particularly since the plaintiff had closed its case and an unconfined amendment could complicate the suit. Without a draft amended defence and counterclaim the prayer could not issue.

p. 11
03

Whether a witness may be recalled after closure of a party's case to produce original documents

Holding

Section 146(4) allows recall, but recalling the plaintiff's witness would be prejudicial and an afterthought; the order for production of originals was confined to the 3rd defendant/respondent

Reasoning

Original documents are the superior form of evidence, but the plaintiff's witness had testified to completion, produced documents without objection, and been cross-examined, after which the plaintiff closed its case. Recall at that stage would be prejudicial. The applicant's claim of collusion and fraud was not a basis to compel reopening. Production orders were instead directed at the public institution holding the records.

p. 13

Legal principles established

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  • The jurisdiction to strike out pleadings is a drastic discretionary power of last resort, and a litigant is not to be deprived lightly of the right to a full trial
  • A party may at any stage of the proceedings be allowed by the court, on such terms as may be just, to amend his pleadings
  • The court may in all cases permit a witness to be recalled for further examination-in-chief or cross-examination, with corresponding rights of further cross-examination and re-examination

Court orders

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  1. 1.The 3rd defendant/respondent is ordered to produce its original records and report on the allocation of property known as (originally registered as LR no. 214/253) later changed as Nairobi Block 8/119 and now as Nairobi Block 8/222 including rate records
  2. 2.Further mention on 4th November, 2026
  3. 3.Costs shall be in the cause
Jurisdiction invoked
Article 159(2)(d) of the Constitution of Kenya; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 14 rule 3, Order 50 rules 6 & 7 and Order 2 rule 15 of the Civil Procedure Rules

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, "Estuarine Estates Ltd v Ole Koiyaki & 2 others (Environment and Land Case 430 of 2022) [2026] KEELC 5379 (KLR)", Case Analysis (2026). ELCC No. E430 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5379/eng@2026-09-03

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