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

2026, witness statement and the list of documents dated 26thJanuary 2026 and further list and bundle of documents dated be 19th January 2026 and filed in the court's CTS on the 23 rd February 2026 is having been time barred and prejudicial (sic). 3. In the alternative and in the event that this honourable court is inclined into admitting the documents this honourable court be pleased to order that the case be re-opened and the 1st defendant /applicant be granted leave to amend his defence and counter claim as the documents submitted have wholly changed the course of this matter hence the need for him to re-amend his statement of defence and counterclaim in the interest of justice. 4. This honourable court be pleased to stay and or arrest the proceeding defence hearing herein pending the hearing and determination of this application. 5. This honourable court be pleased to order the 3 rd defendant/ respondent 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. 6. This honourable court be pleased to order the director 2|Page city planning from RULING ELCC NO. E430 OF 2022 DELIVERED VIRTUALLY ON 3RD SEPTEMBER 2026 the 3 rd

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defendant/respondent to produce its records of ownership documents, rates and their records 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. 7. This honourable court be pleased to order the Directorate of Criminal Investigations (DCI) to avail his status of investigations on the ownership 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 before the hearing and determination of the suit herein. 8. This honourable court be pleased to order the Directorate of Survey to appear in person before this honourable court and avail a report on the excision of the road on the land and also in respect of ownership of the land by the 1st defendant/applicant instead of a one Mr. Wilfred Muchai who is biased. 9. This honourable court be pleased to order the parties to appear before it in the next hearing together with their original ownership documents property known as (originally registered as LR no 214/253) later changed as Nairobi Block 8/119 and now as Nairobi Block 8/222 for inspection and interrogations. 10. Costs of this application be awarded to the plaintiff. 3|Page RULING ELCC NO. E430 OF 2022 DELIVERED VIRTUALLY ON 3RD SEPTEMBER 2026

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2. The application is premised on the grounds on its face. It is further supported by the affidavit of the 1 st defendant/applicant sworn on even date. He deposed that after having perused the 2nd defendant/respondent’s list of witnesses dated 19th January 2026, witness statement and the list of documents dated 26th January, 2026 and further list and bundle of documents dated be 19 th January, 2026 and filed in the court's CTS on 29 th February 2026, the said documents were filed outside the timelines and therefore he vehemently opposes the production thereof. 3. The 1st defendant/ applicant deposed that since the institution of this suit, the plaintiff/respondent and the 2 nd and 3rd defendants/respondents have never produced the original documents neither at the DCI nor at the Survey of Kenya, despite him having always produced his original documents whenever it was required of him. That despite taking pre-trial directions, the plaintiff/respondent did not produce the said documents and now seeks to produce them at the tail-end of these proceedings. He deposed that the production of the said documents has changed the course of these proceedings, and he now wishes to re-amend his defence and counterclaim 4|Page RULING ELCC NO. E430 OF 2022 DELIVERED VIRTUALLY ON 3RD SEPTEMBER 2026

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to rebut and respond to the alleged fraudulent facts contained therein. 4. Further, that when they were summoned by the director of surveys, he appeared and presented his original documents while the plaintiff/respondent failed to appear. As a result, the director of surveys confirmed that his documents were in order, but a letter from the permanent secretary, lands prompted the director of surveys to inform him that he should approach the court. It is the 1 st defendant/applicant’s allegation that the plaintiff/respondent, 2 nd and 3rd defendants/respondents have colluded to grab his land and that the filed documents are fraudulent and should be expunged from the record. 5. Edwine Otieno, advocate on record for the plaintiff/respondent, filed her replying affidavit sworn on 29 th of April, 2026. She highlighted that on the 20 th of January 2026, the 2nd defendant/respondent revisited the 1st defendant/applicant’s earlier application to file documents from the director of survey, and the 1st defendant/applicant did not oppose the application. Further, that the court 5|Page RULING ELCC NO. E430 OF 2022 DELIVERED VIRTUALLY ON 3RD SEPTEMBER 2026

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allowed the application on condition that the documents be filed within three days. The said director of survey filed Maps, RIMs, and reports relating to L.R 214/253 as applied for by the 1st defendant/applicant. 6. While admitting that the documents were filed out of time, the learned counsel deposed that the 1 st defendant/applicant will not suffer any prejudice if the said documents are admitted. She deposed that substantive justice enjoins the court to admit the documents filed by the 2 nd defendant/respondent and in the same breath, grant the 1 st defendant/ applicant limited time to respond to the issues raised in the documents. The learned counsel added that she has no objection to the 1st defendant/ applicant being recalled to the stand, if he wishes to do so. 7. In response to prayer 6, it was deposed that the plaintiff/respondent produced records of payment of rates to the 3rd defendant/respondent from 1996 to 2025 which were not disputed and the prayer therefore cannot be granted. In response to prayer 7 of the application, the learned counsel deposed that since the DCI is not a party to these 6|Page RULING ELCC NO. E430 OF 2022 DELIVERED VIRTUALLY ON 3RD SEPTEMBER 2026

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proceedings, an order for production of documents cannot therefore be made against that office. However, she noted that in the documents filed by the 2 nd defendant/respondent, there is a Mr. C.I Mburugu, a DCI Officer, who is to be called as a witness. With regard to prayer 8, the learned counsel deposed that these documents have been filed. Further, she deposed that the 1st defendant/applicant cannot direct the 2 nd defendant/respondent or the director of survey on who to avail in court as their witness, since each party in a case is free to call whichever person is best suited as a witness. 8. The plaintiff/respondent opposed prayer 9 of the application, stating that the plaintiff’s witness, Ms. Zainab Abdul Latif testified to completion, produced documents without any objection from any of the parties and was cross-examined by all the defendants to completion. Further, that the plaintiff/respondent closed its case and does not wish to reopen it. Consequently, the plaintiff/respondent cannot at this state, after close of its case be compelled to re-open its case and produce original documents. 7|Page RULING ELCC NO. E430 OF 2022 DELIVERED VIRTUALLY ON 3RD SEPTEMBER 2026

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9. In response thereto, the 1st defendant/applicant filed a further affidavit sworn on 18th May, 2026. In summary, he deposed that that the plaintiff/respondent’s advocate has no capacity to swear that the plaintiff/respondent is not willing to be recalled and or to reopen the case which facts can only be deponed by the plaintiff/respondent herself. Further, that the 3rd defendant/respondent is a public institution and documents in their custody can be recalled or ordered produced for the interest of justice and not as a matter of their choice. 10. The application was canvassed through written submissions. The 1st defendant/applicant filed his written submissions dated 18th May, 2026. The plaintiff/respondent did not file its written submissions. Be that as it may, I have considered the application, the replies thereof and the written submissions filed. The issue for determination is whether the application has merit. 11. The 1st defendant/applicant seeks a number of orders, with the first prayer being an order seeking to expunge from its records and proceedings the 2nd defendant/respondent’s list 8|Page RULING ELCC NO. E430 OF 2022 DELIVERED VIRTUALLY ON 3RD SEPTEMBER 2026

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of witnesses dated 19 th January 2026, witness statement and the list of documents dated 26 th January, 2026 and further list and bundle of documents dated 19th January, 2026 and filed in the court’s CTS on 29 th February, 2026 for having been time barred and thus prejudicial. 12. This court directed the 2nd defendant/respondent to file documents from the director of survey on 20 th January, 2026 within 3 days, but the said documents were filed later on the 29th February, 2026. The court is now called to interrogate whether these documents ought to be expunged from court records for being filed outside the time frame. The learned judges of the court of appeal in the case of Kivanga Estates Ltd v National Bank of Kenya [2017] KECA 591 (KLR) held as follows:“It is not for nothing that the jurisdiction of the court to strike out pleadings has been described variously as draconian, drastic, discretionary, a guillotine process, summary and an order of last resort. It is a powerful jurisdiction, capable of bringing a suit to an end before it has even been heard on merit, yet a party to civil litigation is not to be deprived lightly of his right to have his 9|Page RULING ELCC NO. E430 OF 2022 DELIVERED VIRTUALLY ON 3RD SEPTEMBER 2026 Ltd

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suit determined in a full trial. The rules of natural justice require that the court must not drive away any litigant from the seat of justice, without a hearing, however weak his or her case may be.” 13. While I place reliance on the above cited authority, I do note that indeed there was delay in filing the said documents. However, there is need to strike a balance between whether expunging these documents would be the most appropriate remedy or whether allowing the same would be in the interest of justice and further assisting the court have better particulars of the dispute at hand. In my view, expunging these documents from the court record would not be an appropriate remedy. The court therefore declines to strike out/expunge these documents from the record, as they were filed pursuant to a court order and are necessary for the full and final determination of this suit. 14. If the 1st defendant/applicant feels prejudiced by the filing of these documents, amendment by leave of the court is allowed under Order 8 rule 3 of the Civil Procedure Rules, which provides that:- 10 | P a g e R U L I N G E L C C N O . E 4 3 0 O F 2 0 2 2 D E L I V E R E D VIRTUALLY ON 3RD SEPTEMBER 2026

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“Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.” 15. This means that prayer 3 of the application can be granted allowing the 1st defendant/applicant to amend his defence and counterclaim. However, it would have been preferable for the 1st defendant/applicant to annex a copy of the draft amendments to enable the court to assess the extent of the amendments. I say this for the reason that it is possible for the amendment to completely alter the whole suit thus putting all the parties in a more complex position, especially in this case where the plaintiff/ respondent has already closed its case. Without a draft amended defence and counterclaim, prayer 3 cannot issue. 16. Prayer 4 of the application is now spent as the application hereby stands determined. For the 5 th, 6th and 9th prayers, the 1st defendant/applicant seeks that the parties including the 11 | P a g e R U L I N G E L C C N O . E 4 3 0 O F 2 0 2 2 D E L I V E R E D VIRTUALLY ON 3RD SEPTEMBER 2026

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3rd defendant/respondent to appear before court in the next hearing together with their original ownership documents on the suit property, for interrogation. This is in order, according to Section 35 of the Evidence Act Cap 80 which provides that:“In any evidence civil of proceedings a fact would where be direct oral admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say— (a) if the maker of the statement either— i. had personal knowledge of the matters dealt with by the statement; or ii. where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and (b) if the maker of the statement is called as a witness in the proceedings:” 12 | P a g e R U L I N G E L C C N O . E 4 3 0 O F 2 0 2 2 D E L I V E R E D VIRTUALLY ON 3RD SEPTEMBER 2026

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17. Therefore, original documents are the superior form of evidence, but secondary evidence is allowed in a number of circumstances listed under the Evidence Act. The court notes that the plaintiff/respondent has already closed its case. Can a witness be called to the stand to produce the said original documents? The answer lies in Section 146(4) of the Act, which provides as follows:“The court may in all cases permit a witness to be recalled either for further examinationin-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re- examination respectively.” 18. While the law allows for the recalling of a witness, I find it prejudicial to recall the plaintiff/respondent’s witness to produce original documents, yet parties went through the pretrial stage and in fact during the examination in chief, no objection was raised to the production of the plaintiff’s documents. This appears as an afterthought, and the court cannot entertain this prayer. In my view, and as I find merit in prayers 5, and 6, prayer 9 would only be suitable to the 3 rd defendant/respondent. 13 | P a g e R U L I N G E L C C N O . E 4 3 0 O F 2 0 2 2 D E L I V E R E D VIRTUALLY ON 3RD SEPTEMBER 2026

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19. For 7th prayer, the 1st defendant/applicant has sought that the Directorate of Criminal Investigations (DCI) avail his status of investigations on the ownership of the suit property before the hearing and determination of the suit herein, alleging that one Mr. Wilfred Muchai is biased. While this is not a criminal case, the court notes that in the documents filed by the 2nd defendant/respondent, there is a Mr. C.I Mburugu, a DCI officer, who is to be called as a witness. The 1 st defendant/applicant contends that he should file a witness statement, but it should be noted that as an expert witness and not a party to the suit, the DCI has no capacity to take any side and file a witness statement for any party’s case. Therefore, the prayer needs not be further interrogated. 20. Regarding prayer 8, the 1st defendant/applicant alleges that Mr. Wilfred Muchae is biased. The said bias has not been demonstrated. Equally so, it is upon a party to choose whom to call as a witness and it is not upon the 1 st defendant/ applicant to decide who a particular witness ought to be, especially one belonging to another party. 14 | P a g e R U L I N G E L C C N O . E 4 3 0 O F 2 0 2 2 D E L I V E R E D VIRTUALLY ON 3RD SEPTEMBER 2026

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21. From the above, the notice of motion dated 5th March, 2026 partially succeeds in the following terms:i. The 3rd defendant/respondent is hereby 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. ii. Further mention on 4th November, 2026. iii. Costs shall be in the cause. It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 3RD DAY OF SEPTEMBER, 2026. HON. MBOGO C.G. JUDGE 03/09/2026. In the presence of:Mr. Benson Agunga – Court assistant 15 | P a g e R U L I N G E L C C N O . E 4 3 0 O F 2 0 2 2 D E L I V E R E D VIRTUALLY ON 3RD SEPTEMBER 2026

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Ms. Nyang’ for the 1st Defendant/Applicant Mr. Duncan Anzala for the Plaintiff/Respondent Ms. Kivuti holding brief for Mr. Ongoto for Defendant/Respondent 16 | P a g e R U L I N G E L C C N O . E 4 3 0 O F 2 0 2 2 D E L I V E R E D VIRTUALLY ON 3RD SEPTEMBER 2026 the 3 rd

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