Abdulahi Muirui Muigai & 5 Others v The Attorney General & Another; Amboseli Court Ltd & 13 Others (Interested Parties)

VIRGIN COURT LTD…………………….………... 2ND LTD…………………………… 3RD INTERESTED PARTY SODUKU ESTATES INTERESTED PARTY JOHN GAKUU GITHAE………………………...… 4TH INTERESTED PARTY VISCOUNT HOLDINGS LTD…………………..… 5TH INTERESTED PARTY UMOJA ESTATES RESIDENTS ASSOCIATION………………………………….….. 6TH INTERESTED PARTY U-HAUL VEHICLE HIRE LTD……………………… 7TH LTD………………………… 8TH INTERESTED PARTY NAIROBI BOTTLERS INTERESTED PARTY EMCO BILLETS &STEEL……………………… 9TH INTERESTED PARTY STEEL STRUCTURES LTD…………………… 10TH INTERESTED PARTY FREESOAN CONSTRUCTION LTD………… 11TH INTERESTED PARTY CITY COUNCIL OF NAIROBI…………….… 12TH INTERESTED PARTY KAMBA MANUFACTURING LTD………… 13TH INTERESTED PARTY Page 2 of 25 ELC PET 47 OF2011

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DANDORA HOUSING SCHEMES LTD…… 14TH INTERESTED PARTY CO-OPERATIVE BANK ………………… PROPOSED 15 TH INTERESTED PARTY RULING 1. When this matter came up on 14.7.2028 before this court following the transfer of the previous presiding judge, learned counsel for the petitioner, Mr Murunga, told the court that the matter is part-heard and the only remaining witness for the petitioners is a valuer. Learned counsel told the court that his instructions are that the matter proceed from where the former presiding judge left it once proceedings are ty0ped but on a priority basis since the petition relates to other matters. 2. Learned counsel told the court that his clients had issues with late filing of documents by the 1 st respondent, which were served upon them on 8 th December,2025 and 12.1.2026, when the petitioner's case had advanced to a greater extent. Page 3 of 25 ELC PET 47 OF2011

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3. Learned counsel for the 2nd respondent, Mr Mbuthia, took the view that it should start de novo going by previous orders made, though he agreed that parties are at liberty to review those orders. 4. Mr Kubai, learned counsel for the 1 st,2nd & 3rd interested parties, submitted that his clients had no objection to the matter proceeding from where it has reached. Miss Wangari, learned Counsel for the 1st interested party, told the court that her instructions were that, as ordered on 16.3.2026, the matter starts de novo. 5. Miss Matasi, learned counsel for the 8 th interested party, was of the view that, starting the matter de novo would be an injustice to her clients, especially when the petitioner's case is at the tail end and would derail an already old matter. 6. Learned Counsel submitted that it is economically unviable for the lawyers for the parties to do so. On adduction of new evidence, learned counsel submitted that just like the petitioners have in the past been allowed to introduce new documents, the 1st respondent's documents ought to be allowed instead of being expunged from the record. Page 4 of 25 ELC PET 47 OF2011

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7. Learned counsel told the court that to disallow the introduction of the documents would be unfair to the 1 st respondent. Mr Wakwaya, learned counsel for the 7 th & 11th interested parties, submitted that this matter has been handled by at least three judges since 2011 and therefore starting it de novo would be against the dictates of Justice and prejudicial to his clients. 8. Learned counsel submitted that his client's property has been invaded and therefore the matter should proceed from where it was left by the former court. 9. Regarding orders of March 2026, learned counsel said that the order was given by the court not having seen the witnesses testify and not being able to read the proceedings at the time, but which can now be typed, so that no party is prejudiced on fresh evidence. Learned counsel submitted that the petitioners have consistently been filing documents in the court during hearing of the matter. 10. Learned counsel submitted that the documents are government records in support of the 1 st respondent's side of the story. Page 5 of 25 ELC PET 47 OF2011

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11. Mr Allan Kamau, learned state counsel appearing for the 1st respondent on his part, submitted that his client had no objection to the matter proceeding from where it has reached. 12. Learned counsel conceded that earlier directions before Hon. Lady Justice Christine Ochieng were that the matter starts de novo, informed by the admissions of the 1 st interested party, who had not participated in the proceedings. 13. Learned counsel submitted that either way, the 1st respondent shall abide by the directions of the court. On introduction of new documents, learned state counsel submitted that this is a court of record, which will show that even though the petitioners had introduced various documents midway through the trial, including the valuation report, yet to be produced by a valuer, that was filed and served in open court during the last hearing date. 14. Learned counsel submitted that since the petitioners are yet to close their case, and given the nature of the matter, the 1st respondent takes the view that the court Page 6 of 25 ELC PET 47 OF2011

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should consider all necessary and available material relevant to the dispute to make its decision one way or the other. 15. Learned counsel submitted that the invitation for the court to exercise documents, at this draconian stage powers before to the expunge closure of the the petitioners' case, who can still have an occasion to consider the documents and perhaps seek recall of their witnesses for the purpose of calling other witnesses, is uncalled for and fallacious, especially relating to public documents. 16. Learned counsel submitted that the determination of this petition will have profound impact on many other pending matters on the subject mother title. 17. Learned counsel submitted that, while on the same breath, to invite the court to lock out key evidence from the 1st respondent geared towards assisting the court to determine the issue before it is not in order. Learned counsel submitted that the witness statement and documents availed by the 1st respondent, if allowed, would still enable the petitioners an opportunity to cross-examine, once availed during the defence hearing. Page 7 of 25 ELC PET 47 OF2011

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18. Learned counsel submitted that it is only fair and just, looking at all the circumstances and the court record, to allow the same. 19. Learned counsel submitted that though the petition was filed in 2011, the petitioners have throughout and mid-trial introduced numerous documents and that the 1 st respondent has always been amenable to letting the documents come so long as it is given leave to respond. 20. Learned counsel submitted that the petitioners are seeking compensation from the government, to the value of Ksh 56 billion, which is a colossal amount. Therefore, the 1 st respondent should not be denied an opportunity, at the very least, to demonstrate whether the claim is merited or not. 21. Learned counsel submitted that the document be allowed since the court has the power to deal with matters, including declining the invitation to expunge them from the record. 22. Learned counsel submitted that the question of whether the documents are admissible, relevant, and weighty is an issue to be raised and addressed at the trial. Page 8 of 25 ELC PET 47 OF2011

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23. Learned counsel urged the court to consider the materials and determine the issue. Learned counsel for the 5th petitioner holds the view that the matter can proceed from where it reached. 24. On new documents, learned counsel submitted that if they were filed without seeking leave of court, the only recourse is to expunge them from the court record. 25. Learned counsel Mr Murunga, in a rejoinder, admitted that his clients had variously filed several documents in the course of the trial but with leave of the court, including through an application filed in 2024. 26. Learned counsel submitted that the documents in contention were filed without leave of court and yet the record would show that in 2011, 2012, and 2013, the 1 st respondent was always seeking extension of time to respond to the petition. 27. Learned counsel submitted that the 1 st respondent had sufficient time since 2011, which is a span of 14 years, to comply, only to do so in 2025 when proceedings had Page 9 of 25 ELC PET 47 OF2011

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advanced to a point of only one witness remaining for the petitioners' case. 28. Learned counsel submitted that the 1 st respondent had a chance to listen to all the petitioners' case, only to file a main response to the petition late, which is unfair and contrary to the rules of fair hearing. 29. Learned counsel submitted that there are no exceptional circumstances for the court to consider and allow the documents. 30. Learned counsel submitted that there is no satisfactory explanation for the inordinate delay. 31. Learned counsel submitted that the overriding objective orders the law is the expeditious disposal of matters before the court. 32. Learned counsel submitted that since the petition before the court raises weighty issues and reliefs, there is more reason responsibility why to the comply respondents with have timelines and a general the law; otherwise, the 1st respondent is not a special party to ignore court directives. Page 10 of 25 ELC PET 47 OF2011

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33. The salient questions are whether the matter should start de novo or proceed from where it reached, and either way whether the 1st respondent’s evidence should be allowed at this juncture. To determine the two aspects, it is important to lay out the context of this matter. The court record shows that the hearing of this matter commenced before Hon. Mr Justice Okongo, as then was and thereafter continued before Hon. Lady Justice Anne Omollo, from where it had reached as per directions issued on 5.12.2022 and 18.4.2023. Thereafter, PW1 was further cross-examined. 34. The record shows that an application dated 16.2.2024 was filed after PW 1 testified. The same was allowed on 12.6.2024. The petitioners were allowed to file further documents and witness statements, with corresponding leave being extended to the respondents and the interested parties to file any further documents within set timelines. 35. Afterwards, the petitioners introduced documents which other parties objected to on 7.11.2024, claiming that said documents were new or different from what had been allowed on 14.8.2024. The respondents lamented that the Page 11 of 25 ELC PET 47 OF2011

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petitioners were prosecuting the petition in a manner contrary to the rules of fair hearing. 36. By a ruling delivered on 7.11.2024, the court warned that the filing of documents by the petitioners should not be continuous. It barred the petitioners from doing so. 37. The record shows that the Cooperative Bank Limited, now an intended party, had filed and later withdrew an application dated 7.10.2025. 38. The record shows that on 16.3.2026, directions were issued by the Principal Judge, Elc, that the file be handled by Hon. Lady Justice Ochieng after the former judge was transferred. When the matter was placed before that court on 14.4.2026, certain directions were issued, among them that the matter be started de novo by consent of the parties. 39. By a ruling dated 21.5.2026, the 15 th interested party was allowed to join the petition. 40. Further on 7.7.2026, an order was made to have the file placed before this court for hearing and disposal. 41. The general rule is that, except when it is not reasonably practicable or is against the interest of justice or Page 12 of 25 ELC PET 47 OF2011

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is likely to result in a miscarriage of justice, where a case has proceeded substantially, the court will be more inclined to direct that the case proceeds from where it stopped. 42. The factors to consider in whether to start the case de novo or to proceed from where it had reached include; a) The extent to which the case had proceeded. b) Duration the case has taken from inception to where it has reached. c) Number of witnesses that have testified and are remaining d) Type of witness who have testified e) Comparative demonstrability; prejudice to be suffered either way directions are given. f) Where it is reasonable, the balance of convenience. 43. De novo hearing is therefore an exception rather than a norm. It must be justified and based on legally sufficient grounds. 44. Coming to additional or fresh evidence in the middle of a hearing or on appeal, in Mohammed Abdi Mohammed Vs Ahmed Abdullahi Mohammed & Others (2018) Page 13 of 25 ELC PET 47 OF2011

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Petition Nos. 789 of 2018 ( Judgement delivered on 15th February 2019) EKLR, the court laid down the guidelines for admission of additional evidence before an appellate court; a party seeking to do so must give sufficient reason. 45. In Dorothy Nelina Nafula Vs Hellen Nekesa Nielsen & Another (2017) KECA 654 (KLR), the court said that it must be shown that the evidence could not have been obtained by reason of the diligence before and during the hearing, that the new evidence would probably have an important influence on the result of the case, if it was available at the time of the trial and finally that the evidence is credible, though need not be incontrovertible. 46. In Mzee Wanje & 93 Others Vs A.K. Saikwa (1982- 1988) 1 KAR 463 and (1984) EKLR, the court said that the evidence should be needful and not adduced to remove any lacunae or fill in gaps in evidence. In Mohammed Abdi; Mohammed case ( Supra), the court said that the evidence must be one that was not within the knowledge of, or could not have been produced at the time of the suit and that Page 14 of 25 ELC PET 47 OF2011

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whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process. 47. Additionally, the court said that it will also consider the proportionality and prejudice of allowing the additional evidence by assessing the balance between the significance of the additional evidence on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other hand. 48. In Patrick Thoithi Kanyuira vs Kenya Airport Authority Petition (2022) KESC 30 KLR (Application No. 7 of 2017), the court cited with approval Ladd vs Marshall (1954) 1 WLR 1489 on the three tests to be met by additional evidence. 49. The court cited with approval Raila Odinga & Others vs IEBC & Others (2013) EKLR, where the court cautioned that it will be reluctant to grant leave for the filing of further affidavits and/or admission of additional evidence, if the Page 15 of 25 ELC PET 47 OF2011

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evidence is such as to make it difficult or impossible for the other party to respond effectively. 50. Just as was the case in the Thoithi case, what the 1 st respondent has not answered is: “If the so-called additional evidence was indeed crucial to it, why did they have to wait until the 11th hour to file the same and after almost four petitioner’s witnesses have testified? 51. The documents have been said to be public documents. The custodian of those documents from which and from whom the 1st respondent would have obtained the same has been in existence well before the commencement of the evidence of PW 1. The petition was filed and served upon the 1st respondent over 12 years ago. The 1 st respondent has not even attempted, let alone explained, the reasons for the inordinate delay and what prevented it from obtaining and availing the evidence to the court. Numerous orders and directives have been made for the respondents to file responses to the petition. 52. The law is that the more advanced a trial gets, the more prejudice the other party suffers and the more difficult Page 16 of 25 ELC PET 47 OF2011

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it is for the court to allow the presentation of additional evidence that was not earlier discovered, as held in Joseph Muya Njaru vs Stephen Njoroge Kunda & 3 Others, [2012] KEHC 6 (KLR) Nakuru ELC No. 156 of 2012. 53. In Freedom Limited Vs Omar Awadh Mbarak, Petition (Applicant) No. E009 of 2024, the court said that as a general rule, parties to litigation must bring forward their whole case and will not, except under (exceptional circumstances), be permitted to open the same subject for litigation in respect of matters which might have been brought forward at the trial. 54. The court said that admission of additional evidence must be guided by consideration of, inter alia, necessity and appropriateness in the circumstances as set out in the Mohammed Abdi Mohammed Criterion. 55. The evidence in contention is the following: the 1 st respondent’s further supplementary list and bundle of documents dated 5th December, 2025, which contains a copy of cadastral survey plan F/R 251/87, A cadastral map of Nairobi Block 107, Sheet No 1 – Sheet No 3 and a copy of Page 17 of 25 ELC PET 47 OF2011

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part print of the scheme plan of Umoja 2 Estate 2 which predate 2011; List of witnesses dated 5.12.25 and witness statement of Alphonze Kioko Malii, Omolo Patroba, David Nyando Nyambaso, who are the Director of Land Valuation and National Director, Physical Planning dated 5.12.2025; Witness statement of Wifred Muchae dated 5.12.2025; 1 ST respondent supplementary list and bundle of documents containing 81 documents, among them correspondences of 1964, 1967, 1968, 1969, 1970, 1974, 1984, 1990, 1991, 1992, 1998, 2000 & 2022, 37 cadastral survey plans and a part print of the scheme plan of Umoja 2 Estate. 56. There is no dispute that the said materials were being introduced almost at the tail end of the petitioner’s case. The 1st respondent has already cross-examined all the petitioner's witnesses. It is also notable that the petitioners, after seeking leave through an application dated 16.2.2024, filed and served a further list of witnesses & documents dated 16.2.2024. 57. The first time an order was made for parties to file responses and documents was on 19.6.2015. This was Page 18 of 25 ELC PET 47 OF2011

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before pre-trial directions on how to proceed were issued on 29.6.2015. Before this, an earlier order had been given ordering the respondents to answer to the petition. 58. The order was that if the respondents did not respond within 30 days, they would be barred from so doing. After joinder of the 12th interested party, the parties were again allowed to file responses. Hearing dates were then given for 23rd, 24th & 25th September 2017. The hearing then started in earnest on 24.9.2019 with an opening statement by Mr Numanda, Advocate for the petitioners. PW 1 then took the witness stand. Mr Kamau for the Hon. Attorney General cross-examined the witnesses on 10th February 2020. He was then stood down for further hearing on 29th & 30th September 2020, 20th & 21st April 2021. 59. The matter was then taken over by Hon. Lady Justice Omollo with effect from 5.12.2022; the parties agreed to proceed from where it had reached. It then proceeded on alternate days with PW 1, PW 2, PW 3, & PW 4, with full participation of the 1st respondent. Page 19 of 25 ELC PET 47 OF2011

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60. Having set out the background, the 1 st, 2nd, 3rd & 5th petitioners seek to have the documents expunged. 61. The applicants have not termed the documentary evidence sought to be introduced as irrelevant or not having an indirect answer to the questions raised in the petition. 62. As held in Freedom Limited vs Omar Awadh (Supra), the rule of thumb is that additional evidence will be required to do justice between the parties. The ratio decidendi in the Mohammed Abdi Mohammed case is that only evidence that is directly relevant to the matter before the court would be considered for admission. 63. The objectors have not denied that the evidence will assist the court to trace the root title of the suit property. The objectors have also not submitted that the said documentary evidence does not meet the threshold in Mohammed Abdii Mohammed case (supra). It is unfortunate, however, that the 1st respondent has not adhered to court directives such that it listened to and cross-examined the petitioners' witnesses only to disclose their documents too late. Page 20 of 25 ELC PET 47 OF2011

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64. Looking at the documentary evidence, and its nature, it would be of use to this court in reaching a fair and final decision or on dispute between the parties. 65. Two wrongs do not make a right. 66. Whereas the 1st respondent has rebutted that the petitioners have been continuously been filing documents, responding to a wrong action with another wrong does not correct anything. It did not give the 1 st respondent the right not to answer to the petition. 67. A party who has failed to respond to a petition for over 8 years cannot be allowed to take benefit from his own wrong. A party who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. 68. Having reviewed the law and the circumstances of this case, my finding is that, though introduced too late, the documentary evidence sits at the threshold of the law. The court notes that most of the interested parties have other pending suits, some stayed, awaiting the disposal of this petition. In the circumstances, it will not be in the interest of justice to decline admission of the same. The petitioners, if Page 21 of 25 ELC PET 47 OF2011

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need be, may recall some of their witnesses, since the petitioners' case has not closed, for further cross- examination. The petitioners are granted leave to file any supplementary affidavit if need be to respond to the said documents. 69. As regards directions on further hearing of the matter, the law is that parties have a duty to assist the court in achieving the expeditious disposal of the dispute, as was held in Thomas Mwaura Gitau & Another Vs Eric Muhati & Others (2012) EKLR. 70. In Mandavia vs Rattan Singh (1965 EA 26), the court set out the considerations for making a de novo order among them; a) Whether the succession judge is in a good position to evaluate the evidence of the predecessor. b) Availability of witnesses. c) Prejudice that parties will suffer. d) Balance between the overriding objective and justice vis-à-vis the cost-effectiveness of the order. Page 22 of 25 ELC PET 47 OF2011

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71. The court in Hussein Khalid & 16 Others vs The Hon. Attorney General & 2 Others, Supreme Court Application No. 32 of 2019, (2020)EKLR, Ruling delivered on 4th September,2020, the court said that under the de novo principle, once a judicial officer trying a matter cease to exercise jurisdiction over the matter during the pendency of the trial through transfer, or other circumstances, his successor in jurisdiction gives the parties the right to elect how to proceed, either to proceed from where the hearing had reached or start de novo. 72. The court cited Nitinbhai Saevatilal Shah & Another Vs Manubhai Manjibhai Panchal & Another (2011) 9SCC 638, that a judicial officer who hears a case is the one preferred to decide on it; unless the parties elect otherwise, a successor deciding based on the record may not appreciate the evidence of witnesses by observing the demeanour, credibility, emotion and the like, which aspects of evidence may not be recorded in a detailed manner. 73. The court said that another principle in the de novo hearing is that it should not be taken as an opportunity to fill Page 23 of 25 ELC PET 47 OF2011

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in gaps noted during the hearing by bringing a new set of evidence for a retrial. 74. The court cited Ajay Kumar Chosal ELC vs State of Bihar & Another that a de novo trial is a continuation of the same trial. 75. Guided by the foregoing and considering the nature and circumstances of this case, I think a de novo hearing will not be in the interest of justice. The matter can proceed from where it has reached. The petitioner are at liberty to recall some of the witnesses if need be. Dated, Signed and Delivered this 30th day of September,2026 at Nairobi. …………………….. HON.JUSTICE C.K. NZILI JUDGE In the presence of ; 1. Mr. C.K Kihara for 14th interested party 2. Mr.Kamau for the 1st respondent Page 24 of 25 ELC PET 47 OF2011

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3. Mr. Wachira for 6th interested party 4. Miss Kemunto for 12th interested party 5. Mr.Mbuthia for 2nd respondent 6. Mr. Wanyanga for 1st, 2nd, 3rd ,4th & 6th petitioners 7. Kienta for Ali Ahmed for 14th & 15th interested parties 8. Mr.Macharia for the 1st , 2nd , & 3rd interested parties 9. Mr. Omunga for 9th interested party 10. Mr. Murunga for the 1st ,2nd , 3rd ,4th & 6th petitioners 11. Mr. Were for 5th petitioner 12.Mr. Kithing for Odari for the intended interested party 13. Court Assistant – Julius Page 25 of 25 ELC PET 47 OF2011

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