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ELCOtherNot stated in the ruling

Moses Warui Gatimu v Douglas Mwai Machuru & another [2018] KEELC 2677 (KLR)

High Court of Kenya
26 June 2018
897 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court allowed extra documents in a land trial, ruling that evidence already on record causes no unfairness to the other side.

What this practically means

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Executive summary

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This interlocutory ruling of the High Court (signed by B.N. Olao J and read and signed by S.N. Mukunya J) deals with an evidentiary objection in a land suit concerning parcels Mwerua/Baricho/224 and 236. During the plaintiff's testimony, he sought to produce a map showing the location of the parcels and an agreement dated 25th August 1981 acknowledging Ksh. 50,000 as the price of three acres out of parcel 224. Defendants' counsel objected: the maker of the agreement was unclear and the map was not an original. Plaintiff's counsel responded that both documents had been served in December 2013 without objection and that the agreement was drawn and signed by the 1st defendant. The court noted that under Order 3 Rule 1 and Order 7 Rule 5 of the Civil Procedure Rules parties must file documentary exhibits, and the plaintiff had not included these documents in his list. However, the rules do not bar additional evidence; guided by Article 159(2)(d) of the Constitution, the court may admit additional documentary evidence where no prejudice is caused, subject to guarding against ambush under Article 50(1). The court found the documents were already part of the record, annexed to the plaintiff's further supporting affidavit of 9th December 2013 supporting his injunction application (MWG 2 and MWG 3), and the plaintiff was still testifying and could be cross-examined. The objection was overruled and dismissed, the documents admitted as additional documentary evidence, with no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaintiff should be allowed to produce, as additional documentary evidence, an agreement dated 25th August 1981 and a map not included in his list of documents filed under the pre-trial directions
  2. 2.Whether the defendants would be prejudiced by the production of the two documents

Key legal issues

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01

Production of documents not listed under pre-trial directions

Holding

Objection overruled; documents admitted as additional documentary evidence

Reasoning

The pre-trial rules do not bar a party from adducing additional evidence not filed earlier. Guided by Article 159(2)(d), the court may allow additional documentary evidence where no prejudice results. The documents were already on record, annexed to the plaintiff's further supporting affidavit of 9th December 2013 (MWG 2 and MWG 3), and the plaintiff was still testifying and could be cross-examined on them.

p. 2
02

Guard against ambush with new evidence

Holding

Court must be vigilant against parties stealing a match, balancing relevance and fair hearing under Article 50(1)

Reasoning

The court held that while parties should be allowed to place all relevant evidence before it, the court must guard against attempts to ambush adversaries with evidence that cannot be adequately rebutted. Here the trial had only commenced and the defendants would have an opportunity to cross-examine, so no prejudice arose.

p. 1

Legal principles established

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  • A court may, in the interest of justice under Article 159(2)(d), allow a party to adduce additional documentary evidence where no prejudice will be caused to the other party
  • A fair hearing is not served where a party is ambushed late in the trial with new evidence

Court orders

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  1. 1.The objection to the production of the agreement dated 25th August 1981 and the map is overruled
  2. 2.The documents shall be produced as the plaintiff's additional list of documentary evidence; no need to serve the defendants again as they already form part of the record
  3. 3.The defendants' objection is dismissed
  4. 4.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
Jurisdiction invoked
Article 159(2)(d) of the Constitution; Civil Procedure Rules (Order II, Order 3 Rule 1, Order 7 Rule 5)

Relief refused

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Defendants' objection to production of the documents

Documents were already part of the record and no prejudice would be caused

p. 2

Costs

No order as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

guided by the provisions of Article 159 (2) (d) of the Constitution, the Court can allow a party to adduce additional documentary evidence particularly where no prejudice will be caused to the other party
p. 1Additional documentary evidence
there can be no fair hearing if one party is ambushed late in the trial with new evidence
p. 1Fair hearing and ambush
Ultimately therefore, I overrule the objection on production of the agreement dated 25 th August 1981 and the map. The same shall therefore be produced as the plaintiff's additional list of documentary evidence and since they already form part of the record, there will be no need to serve the defendants again. The defendants' objection is therefore dismissed. No order as to costs.
p. 2Final orders

Issues in the judgment

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minor

Ruling signed and dated by B.N. Olao on 7th May 2018 but read and signed on 26th June 2018 by S.N. Mukunya; the judgment uses 'Ruling' terminology within a suit hearing

minor

Case title and case number not stated in the excerpt; parties other than the plaintiff identified only as '1st defendant' and 'defendants'

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, "Moses Warui Gatimu v Douglas Mwai Machuru & another [2018] KEELC 2677 (KLR)", Case Analysis (2018). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2677/eng@2018-06-26

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