Gitau & 2 others v Attorney General & 13 others (Environment & Land Case 57 of 2021) [2024] KEELC 7169 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed late-filed land ownership documents into evidence, ruling that a lawyer's mistake shouldn't silence a client's case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 10th Defendant/Applicant is entitled to the orders sought in the application dated 26th September 2024
- 2.Whether it will be in the interests of justice to allow the 10th and 11th Defendants to adduce additional documents as pleaded
Key legal issues
#Whether leave should be granted to the 10th and 11th Defendants to file and rely on a supplementary list of documents after both sides had closed their cases
The application was allowed; the failure to file the documents was an honest mistake by former counsel and admitting them serves the interests of justice and the overriding objective.
The court noted Order 11 permits filing of further documents even after pretrial conference. The documents partly overlap with the Plaintiffs' own documents and were acknowledged by prior defence witnesses. The Plaintiff would have the opportunity to cross-examine on them, and witnesses may be recalled under Order 18 Rule 10 and Section 146(4) of the Evidence Act, so no prejudice was established.
Whether the Plaintiff's claims of ambush, forgery and prejudice defeat the application
Allegations of forgery remain unproved and are matters for trial; the Plaintiff did not establish how the documents would alter the case.
The maker of the sale agreement is willing to testify, and bank officials can be availed to authenticate payment slips. Prejudice was mitigated because the documents would be produced in the 10th Defendant's evidence-in-chief, giving the Plaintiff an opportunity to examine on their contents.
Legal principles established
#- A party wishing to introduce new or additional evidence must seek leave of the court, and the court may permit further documents even after pretrial conference.
- In exercising discretion to admit additional evidence, the court must consider the nature, context and extent of the new material and whether the other party can respond effectively.
- A mistake by counsel should not necessarily bar a client from being heard on the merits.
Court orders
#- 1.Leave granted to the 10th and 11th Defendants/Applicants to file additional and or supplementary list of documents attached to the application
- 2.The additional and or supplementary list of documents annexed to the application deemed as duly filed
- 3.Any of the parties at liberty to recall a witness for purposes only of the additional and supplementary list of documents annexed to the application
- 4.Costs of the application to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent powers under Section 3A of the Civil Procedure Act, Sections 1A and 1B of the Civil Procedure Act, section 13 of the Environment and Land Court Act and Article 50(1) of the Constitution
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That leave is granted to the 10th and 11th Defendants/Applicants to file additional and or supplementary list of documents attached to the application.
That any of the parties is at liberty to recall a witness for purposes only of the additional and supplementary list of documents annexed to the application
I believe the failure to file the documents was an honest mistake and the same should not bar the 10th Defendant from exercising his right to be heard on merit.
A mistake is a mistake. It is no less a mistake because it is an unfortunate step.
That costs of this application shall be in the cause
Issues in the judgment
#Applicants cite Rule 18 of the Supreme Court Rules, 2012 as the threshold for additional evidence, but the suit is before the Environment and Land Court; the provision appears inapplicable.
The Applicants' role is inconsistently referred to as both Applicants and Defendants throughout the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitau & 2 others v Attorney General & 13 others (Environment & Land Case 57 of 2021) [2024] KEELC 7169 (KLR)", Case Analysis (2024). Not stated in the judgment (application dated 26th September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7169/eng@2024-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.