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ELCDismissedNot stated in the judgment (plaint dated 1st September, 2021, filed 16th September 2021)· [2024] KEELC 3574 (KLR)

Njoroge (Suing as the administrator of the Estate of the Estate of Wangui Njoroge (Deceased) v Ticha (Environment & Land Case E068 of 2021) [2024] KEELC 3574 (KLR)

Environment and Land Court
11 April 2024
LOL. A. Omollo
3,746 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to re-open a land case where the extra evidence added nothing new, and the losing party paid costs.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho (L. A. Omollo, J) determined a Notice of Motion dated 25th September 2023 by the Plaintiff, James Waweru Njoroge, in a suit seeking declaration of ownership, rectification of the land register and permanent injunction over Plot No. 180 Missouri Farm, Naivasha. At the close of all parties' evidence and pending submissions and judgment, the Plaintiff sought to re-open his case to admit documents from Re Estate of Joseph Githiri Gitau, Kiambu CMCC Succession Cause No 341 of 2009, including an affidavit sworn on 15th July 2016 by Dominic Ng'ang'a Gathitho (DW2 in this suit), and to recall that witness for cross-examination. The Plaintiff said his counsel stumbled on the documents while drafting submissions and relied on the Kiambu High Court decision in James Gitau Githiri v Jecinta Wairimu Thumbi. The Defendant opposed, saying the application was a fishing expedition, that the affidavit's contents matched the witness's testimony, and that counsel could simply submit on the Kiambu judgment. Relying on Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd, the court held that re-opening is a discretionary, judiciously exercised power. On perusing the affidavit, the court found the witness's deposition in the succession cause - that parcel Naivasha/Maraigushu Block 1/6 (Missouri) measuring 12.8 acres belonged to Joseph Githiri Gitau - was exactly his evidence in this suit, with no contradiction, and that the documents would add no value, being from proceedings between different parties over different subject matter. The application was dismissed with costs.

Key legal issues

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Whether the court should re-open the plaintiff's case to receive additional evidence from a Kiambu succession cause

Holding

The application was dismissed; the documents sought were from proceedings between different parties over different subject matter, and the witness's affidavit merely repeated his evidence in this suit.

Reasoning

The court found the succession cause documents involved different parties and subject matter. Having perused Dominic Ng'ang'a Gathitho's affidavit, the court found its contents identical to his testimony in this suit - that a member of Missouri Farmers Company was entitled to 12.8 acres plus 1.4 acres on rocky land and a plot along the tarmac. There was no contradiction and no evidential value to be added. Re-opening would amount to a fishing expedition causing delay.

p. 8

Legal principles established

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  • Re-opening of a case is a discretionary power that must be exercised judiciously, ensuring no embarrassment or prejudice to the opposite party, and will not be allowed to fill gaps in evidence or where there is inordinate and unexplained delay.
  • Costs follow the event under Section 27 of the Civil Procedure Act; the successful party ordinarily gets costs unless the court directs otherwise.

Court orders

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  1. 1.The Notice of Motion application dated 25th September, 2023 is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 48, 50, 159
  • Evidence ActSection 146(4)
  • Environment and Land Court ActSections 3, 13
  • Civil Procedure Rules, 2010Order 18 rule 10, Order 51 Rule 1, Order 11
  • Civil Procedure Act (Cap 21)Section 27

Cases cited (7)

  • James Gitau Githiri v Jecinta Wairimu Thumbi & 4 others
    Kiambu High Court Civil Appeal No 198 of 2016
  • Cyrus Shakhalaga Khwa Jirongo v Soy Developers Limited & 9 others
    [2020] eKLR
  • David Kipkosgei Kimeli v Titus Barmasai
    [2017] eKLR
  • Samuel Kiti Lewa v Housing Finance Co. Of Kenya Ltd & another
    [2015] eKLR
  • Simba Telecom v Karuhanga & Anor
    (2014) UGHC 98
  • Smith v New South Wales
    [1992] HCA 36; (1992) 176 CLR 256
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Articles 48, 50 and 159 of the Constitution of Kenya, 2010; Sections 3 and 13 of the Environment and Land Court Act; Order 18 rule 10 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Section 146(4) of the Evidence Act

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, "Njoroge (Suing as the administrator of the Estate of the Estate of Wangui Njoroge (Deceased) v Ticha (Environment & Land Case E068 of 2021) [2024] KEELC 3574 (KLR)", Case Analysis (2024). Not stated in the judgment (plaint dated 1st September, 2021, filed 16th September 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3574/eng@2024-04-11

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