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ELCDismissedNot stated in the judgment· [2024] KEELC 5582 (KLR)

Shah v Chief Lands Registrar & 5 others (Environment and Land Case Civil Suit 593 of 2016) [2024] KEELC 5582 (KLR)

Environment and Land Court
18 July 2024
1,283 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to let a litigant add late documents and recall a witness because she gave no credible explanation for the delay.

What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Nairobi, delivered by Lucy N. Mbugua, J on 18 July 2024, determined an application dated 6 May 2024 by the 2nd defendant in an ongoing land trial. The applicant sought to introduce a second list of documents marked 'AWM1' and to recall her witness, Agnes Wambui Manjeru, for further evidence. She explained that her former advocate, Kimandu Gichuhi, had passed on, and that her current advocate had only recently discovered the documents locked in a cabinet. The plaintiff and the 1st, 3rd, 4th and 6th defendants opposed the application. The court first expunged the submissions of both the applicant and the plaintiff, which had been filed out of time, following the Supreme Court's decision in Dande v DPP on the impropriety of accepting irregularly filed submissions. On the merits, the court considered Section 146(4) of the Evidence Act and Order 18 Rule 10 of the Civil Procedure Rules, which confer a discretion to recall witnesses, and the overriding objective under Sections 1A and 1B of the Civil Procedure Act. It held that an applicant seeking to adduce new evidence must explain why it was not produced at the hearing. The applicant's assertion of a recent discovery was vague, unverified, and unsupported by an affidavit from the person who made the discovery. Multiple pre-trial directions had been given, including a self-executing order barring late documents, and the trial was at an advanced stage, with the plaintiff's case closed and the defence case partly heard, without any earlier complaint about missing documents. The application was accordingly dismissed with costs to the plaintiff.

Key legal issues

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01

Whether the court should exercise its discretion to admit additional documents and recall a witness after the trial has substantially proceeded

Holding

The application was dismissed because the applicant gave no details of when the documents were discovered, pre-trial directions had been repeatedly given including a self-executing order excluding late documents, and the trial was at an advanced stage

Reasoning

The court found the applicant's claim that her current advocate only recently 'stumbled across' the documents was vague and unverified by affidavit of the person who made the discovery. Multiple pre-trial directions had been given, including a self-executing order that no documents filed outside timelines would be accepted. The hearing had progressed with the plaintiff's case closed and defence case partly heard, with no complaint about missing documents until months later. The overriding objective demanded procedural fairness and efficiency.

p. 2
02

Treatment of submissions filed out of time

Holding

Following Dande v DPP, the late submissions of both the applicant and the plaintiff were expunged

Reasoning

Relying on the Supreme Court's admonition in Dande & 3 others v Director of Public Prosecutions, the court held that taking submissions filed irregularly out of time would condone an unacceptable practice, and accordingly expunged both parties' late submissions while still considering the application itself and the plaintiff's replying affidavit.

p. 2

Legal principles established

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  • Submissions filed out of time are irregular and should be expunged
  • Where reopening is sought on the basis of new or additional evidence, the court will inquire why the evidence was not called at the hearing
  • The court must apply the overriding objective, weighing procedural justice and efficiency, especially where a matter is at an advanced stage

Court orders

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  1. 1.The submissions of the applicant and the plaintiff filed out of time are expunged
  2. 2.The application dated 6.5.2024 is dismissed with costs to the plaintiff
Jurisdiction invoked
Original trial jurisdiction of the Environment and Land Court

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, "Shah v Chief Lands Registrar & 5 others (Environment and Land Case Civil Suit 593 of 2016) [2024] KEELC 5582 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5582/eng@2024-07-18

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