PROPERTY PRIORITY LIMITED v EMBAKASI PROPERTIES LIMITED & 5 others (Environment and Land Case 233 of 2009) [2025] KEELC 6977 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed late evidence in a land ownership case, saying fair trial value outweighed the eight-month delay.
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 2nd Defendant's Notice to Produce was properly invoked and the attendant objection by the 3rd and 4th Defendants is merited
- 2.Whether this Court should exercise its discretion to grant the 3rd and 4th Defendants leave to file supplementary witness statements and three bundles of documents out of time
Key legal issues
#Validity and timing of the Notice to Produce under Section 69 of the Evidence Act
The 2nd Defendant's Notice to Produce, filed within the case-management window, was properly invoked; the belated objection by the 3rd and 4th Defendants was dismissed on the merits in keeping with the overriding objective
Section 69 of the Evidence Act enables a party with secondary evidence to require production of originals held by the opposite party. The 2nd Defendant's Notice fell within the Order 11 compliance window. The documents sought are public documents in the custody of government offices under the Attorney General's mandate, whose production cannot prejudice either the AG or the Chief Land Registrar. If the documents do not exist, the AG may call witnesses to rebut.
Whether leave should be granted to file additional witness statements and document bundles out of time, mid-trial
Leave granted; although filed eight months after the lapse of the 60-day window, the documents go to the root of the dispute and their probative value outweighs any prejudice
The Court applied the Salat extension-of-time principles and the Zinj additional-evidence criteria. The application came eight months after the lapse of the period fixed on 28th October 2024, but the documents include registration records of Embakasi Properties Limited, cadastral plans, and a DCI Document Examiner's Report potentially relevant to ownership of the suit property. Fairness is preserved because the plaintiff may recall witnesses and file further documents in response.
Legal principles established
#- Extension of time is not a right but a discretionary, equitable remedy available only to a deserving party who explains the delay and shows no prejudice to the other side
- The court has discretion to enlarge time even after expiry of the fixed period, but must exercise it judicially in the interests of justice
- Additional evidence after close of pleadings may be admitted where probative value outweighs prejudice and it is necessary for a just determination
Court orders
#- 1.The 3rd and 4th Defendants in the original suit and the 2nd and 4th Defendants in the Counterclaim granted leave to file additional witness statements, supplementary lists of witnesses and supplementary bundles of documents in support of their defence to the main suit and the counterclaim
- 2.The documents and witness statements, save for those already filed, to be filed and served within three (7) days
- 3.The 2nd Defendant's Notice to Produce upheld and the 3rd and 4th Defendants' objection dismissed
- 4.Each party to bear its own costs
- 5.Plaintiff at liberty to recall witnesses who have already testified to respond to the new documents and witness statements
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A and 95 of the Civil Procedure Act; Order 50 Rule 6 of the Civil Procedure Rules; Article 159 of the Constitution; Section 3 of the Environment and Land Court Act
Relief refused
#3rd and 4th Defendants' Notice of Objection to Production dated 10th March 2025 (leave sought to file it)
The court upheld the 2nd Defendant's Notice to Produce; the documents sought are public documents whose production cannot prejudice the Attorney General or Chief Land Registrar
Costs
Each party to bear its own costs
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.
From the decision in Salat, it is clear that extension of time is not a right but a discretionary remedy, only available where the delay has been reasonably explained and where no prejudice will be suffered by the other party.
In the premises, this court upholds the 2nd Defendant's Notice to Produce and dismisses the 3rd and 4th Defendant's objection to the said notice.
Although filed late, these documents and witness statements are necessary for the just determination of the dispute herein. Applying the proportionality test articulated in the Zinj Ltd case (supra), the probative value of these documents and witnesses outweighs any prejudice to the opposing parties, who will in any event be afforded an opportunity to respond.
Each party to bear its own costs.
That the 3rd and 4th Defendants in the original suit and the 2nd and 4th Defendants in the suit by way of Counterclaim be and are hereby granted leave to file additional witness statements and supplementary list of witnesses together with supplementary bundle of documents in support of their Defence to the main suit and to the counterclaim
Issues in the judgment
#Judgment records a factual discrepancy between the AG's submission (Forensic Report filed 27th December 2024) and the court record (filed 24th October 2024), which the court itself noted
Final order (b) states 'within three (3) days' though the text reads 'three (7) days' - an internal numerical inconsistency
Counsel for the 2nd Defendant argued Order 11 Rule 7 of the Civil Procedure Rules does not exist, while the motion was expressly brought under it
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "PROPERTY PRIORITY LIMITED v EMBAKASI PROPERTIES LIMITED & 5 others (Environment and Land Case 233 of 2009) [2025] KEELC 6977 (KLR)", Case Analysis (2025). Notice of Motion dated 18th August 2025 (ELC suit re LR No. 9042/224, IR No. 48936/1). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6977/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.