In re Estate of Late Hassan Mohamed Jillo alias Mamo alias Hapicha (Deceased) (Succession Cause E009 of 2023) [2024] KEKC 32 (KLR)
The bottom line
#A Kenyan Kadhis' Court allowed late-filed M-Pesa statements as evidence in an estate dispute because they were brief, corroborative, and caused no unfair prejudice.
What this practically means
#Executive summary
#Key legal issues
#Admission of new evidence after close of pleadings
The application was allowed; the mpesa statements were admitted as corroborative evidence as the failure to file them was not shown to be deliberate and the petitioner was not demonstrated to be prejudiced.
The court found the applicant's failure to file the statements was attributable to forgetfulness or lack of knowledge rather than deliberate withholding, as the petitioner did not demonstrate deliberateness. The document was only four pages, corroborative of evidence already marked DEXH-3, introduced no new claim, and the petitioner retained the opportunity to cross-examine and to file responsive documents. The court exercised its discretion under the overriding objective.
Prejudice to the opposing party
The petitioner did not demonstrate what prejudice she would suffer, and the court noted it could grant leave to file responsive documents.
The court held that mere length of time in custody of the document did not prove deliberate non-filing, and that prejudice must be demonstrated. Fairness was preserved through cross-examination under section 146(4) of the Evidence Act and the possibility of the petitioner filing additional documents to counter the admitted evidence.
Legal principles established
#- A court may permit admission of further evidence after the close of pleadings where the delay is not shown to be deliberate and the evidence is limited such that the other party can respond
- There is no law barring a party from obtaining evidence after a suit is filed in court
Court orders
#- 1.Allowed the applicant to introduce the mpesa statements as corroborative evidence on record and served on the petitioner, deemed as filed and forming part of the documents relied on
- 2.Hearing of the suit to continue as scheduled on 18th April 2024
- 3.Each party bears their own costs
- Jurisdiction invoked
- Kadhis' Courts (Procedure and Practice) Rules, Sections 44 and 79
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of Late Hassan Mohamed Jillo alias Mamo alias Hapicha (Deceased) (Succession Cause E009 of 2023) [2024] KEKC 32 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2024/32/eng@2024-04-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.