Ngonyo v Yusuf & 2 others (Environment and Land Case 813 of 2014) [2026] KEELC 798 (KLR)

that the Grant relating to LR. No. 14720 was signed by Mr. Sammy Silas Komen Mwaita, the former Commissioner of Lands, on 7th May 2002, an allegation which Mr. Mwaita has denied in an afidavit sworn on 6th October 2023. 3. It is further the Applicant’s case that the said afidavit by Mr. Sammy Silas Komen Mwaita, which denies execution of the Grant and would assist the Court in reaching a just determination of the dispute, was struck out on 12th October 2023 for having been filed out of time and without leave of the Court. The Applicant contends that no party will sufier prejudice if leave is granted, as all parties will be afiorded an opportunity to cross-examine the deponent in the interest of substantive justice. The Response 4. The Plaintifi/Respondent opposes the Chamber Summons dated 3rd October 2025 through Grounds of Opposition dated 4th November 2025, contending that the Application is bad in law, incompetent, and an abuse of the process of the Court. The Plaintifi maintains that the afidavit sworn by Mr. Sammy Silas Komen Mwaita on 6th October 2023, and filed on 12th October 2023, was filed without leave and outside the timelines prescribed under the Civil Procedure Rules, and was therefore irregular, improperly on record, and rightly struck out. 5. The Plaintifi/Respondent further contends that the present Application is res judicata, the issue of admission of the said afidavit having previously been determined by the Court. It is also asserted that the Applicant has failed to provide any suficient or reasonable explanation for the delay or for the failure to seek leave prior to filing the impugned afidavit, and that a mere assertion that the afidavit would assist the Court does not constitute good cause or a legal basis to regularize non-compliance with procedural rules. 6. It is the Plaintifi/Respondent’s position that allowing the Application would occasion prejudice, given the age of the matter and the procedural steps already undertaken, and would ofiend the principles governing timelines under Order 50 Rule 6 and Order 51 Rule 14(2) of the Civil Procedure Rules. The Plaintifi contends that the Application is an afterthought and a delay tactic, and urges the Court to dismiss it with costs and direct that the matter be set down for finalization. The Submissions 7. Pursuant to the directions of the Court, the Application was canvassed by way of written submissions. In support of the Chamber Summons dated 3rd October 2025, the 2nd Defendant/Applicant submits that the afidavit sworn on 6th October 2023 by Mr. Sammy Silas Komen Mwaita is material to the determination of the suit as it allegedly denies execution of the Grant relating to LR. No. 14720 and raises issues of fraud and illegality which the Court is duty-bound to interrogate. 8. The Applicant contends that the afidavit was struck out on a procedural technicality and that no prejudice will be sufiered if leave is granted, as the defence case has not commenced and all parties will have an opportunity to cross-examine the deponent. Reliance is placed on the principles of substantive justice under Articles 25(c), 50(1) and 159 of the Constitution, and on authorities afirming the Court’s discretion to admit evidence or re-open proceedings where justice demands, including Wambui vsFrank Investment Ltd Civil Suit No. 207 of 2017 [2022] KLR and Samuel Kiti Lewa v Housing Finance of Kenya Ltd & Another [2015] eKLR. 9. The Plaintifi/Respondent, in opposing the Application, submits that the afidavit dated 6th October 2023 was filed out of time and without leave, was properly struck out, and cannot be reintroduced in the absence of suficient cause. The Plaintifi frames the issues for determination as whether the afidavit is properly on record, whether the Applicant has demonstrated suficient cause to warrant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/798/eng@2026-02-16 2

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the exercise of discretion, whether prejudice would be occasioned if the Application is allowed, and who should bear the costs. It is submitted that procedural rules are not mere technicalities and that discretion should not be exercised to aid indolence or disregard of court orders. The Plaintifi relies on Rajesh Rughani v Fifty Investment Ltd & Another [2005] eKLR, Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, Utalii Transport Company Ltd v NIC Bank Ltd [2014] eKLR, and Supermarine Handling Services Ltd v Kenya Revenue Authority [2010] eKLR, and urges the Court to dismiss the Application with costs. Issue for Determination 10. Having considered the Application, the Grounds of Opposition, and the rival written submissions by the parties, the Court is of the view that only one issue arises for determination, namely: Whether the 2nd Defendant/Applicant’s Chamber Summons dated 3rd October 2025 is merited. Analysis and Determination 11. The Application before the Court seeks leave to reintroduce and adopt an afidavit sworn on 6th October 2023 by a former Commissioner of Lands, which afidavit was filed without leave and was struck out on 12th October 2023. The central question is whether the Applicant has demonstrated suficient legal basis to warrant the Court’s discretion to regularize that afidavit. 12. There is no dispute that the afidavit was filed outside the timelines prescribed under the Civil Procedure Rules and without prior leave of the Court. Once struck out, such an afidavit ceases to exist on the record unless reinstated through a proper and principled exercise of discretion. That discretion must be exercised judiciously, upon suficient cause being shown, and in a manner that promotes procedural order and fairness. 13. Although the Plaintifi/Respondent raised the issue of res judicata, the Court notes that the afidavit was struck out on procedural grounds and not upon a substantive determination on its admissibility. The doctrine is therefore not strictly applicable; nonetheless, the Applicant remains under an obligation to demonstrate suficient cause to warrant the exercise of discretion. 14. In determining whether suficient cause has been demonstrated, the Court must consider not only the explanation for delay, but also the necessity, propriety, and legal relevance of the evidence sought to be introduced. The burden rests on the Applicant to show that the impugned afidavit is indispensable to the just determination of the dispute and that its admission cannot reasonably be achieved through procedurally compliant means. 15. The Applicant’s justification is that the afidavit sworn by Mr. Sammy Silas Komen Mwaita contains facts that would assist the Court, specifically a denial of execution of the Grant relating to LR. No. 14720. That assertion must, however, be examined within the statutory framework governing land registration and proof of registered interests. 16. Under the Land Registration Act, 2012, the execution, issuance, custody, and evidentiary proof of registered instruments are statutory functions of the land registry, exercised through the Registrar. Sections 7 and 9 establish the land register and parcel files as the oficial repositories of instruments supporting subsisting entries, while Section 14 vests the Registrar with powers to require production of documents, summon persons, and conduct inquiries relating to land records. 17. Further, Section 26 of the Act provides that a certificate of title issued by the Registrar shall be taken by all courts as prima facie evidence of proprietorship, subject only to the statutory exceptions set out therein. Section 35 is explicit that entries in the register and certified copies or extracts issued by the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/798/eng@2026-02-16 3

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Registrar are to be received in proceedings as prima facie or conclusive evidence of the matters recorded, with certified extracts being preferred to original registers except with leave of the Court. 18. In that statutory context, the authenticity, execution, or regularity of a registered grant is ordinarily proved through oficial records and evidence emanating from the land registry, with the Registrar being the lawful custodian and authoritative source of such records. The Applicant has not demonstrated why the statutory mechanisms under the Act including certified extracts, registry records, or testimony from the Registrar are unavailable, inadequate, or incapable of addressing the issue raised. 19. It is also material that the Registrar of Titles is a party to these proceedings as the 3rd Defendant/ Respondent and is the statutory custodian of the land register and parcel file relating to LR. No. 14720. Any challenge to the authenticity, execution, or regularity of a registered grant is therefore, in the first instance, properly interrogated through evidence emanating from the land registry, rather than through collateral afidavits by former ofice holders whose statements are not anchored in the statutory evidentiary framework. 20. Additionally, the Applicant has ofiered no explanation for the delay or for the failure to seek leave prior to filing the impugned afidavit. The mere assertion that the afidavit may assist the Court cannot, in itself, amount to suficient cause. To hold otherwise would render procedural timelines meaningless and undermine the overriding objectives under Sections 1A and 1B of the Civil Procedure Act, which require the just, expeditious, and proportionate determination of disputes while preserving procedural discipline. 21. On the question of prejudice, the afidavit was properly struck out and the matter has since proceeded on the basis of the existing record. Reintroducing it at this stage would reopen the evidentiary framework, disrupt the orderly conduct of proceedings, and prejudice the Plaintifi/Respondent, particularly given the age of the matter. It would also set an undesirable precedent that parties may disregard procedural requirements and later seek indulgence without justification. Disposition 22. The upshot is that I find no legal or factual basis upon which to exercise my discretion in favour of the Applicant. The Chamber Summons dated 3rd October 2025 lacks merit and is hereby dismissed. 23. Costs shall be borne by the 2nd Defendant/Applicant. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 16TH DAY OF FEBRUARY, 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Mr. Ochanda for 2nd Defendant/Applicant. Mr. Nyakundi for the Plaintifi/Respondent. Mr. Mutua for 1st Defendant/Respondent. N/A for 3rd Defendant/Respondent. Philomena W. Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/798/eng@2026-02-16 4

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