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ELCDismissedNot stated in the judgment provided

Registered Trustees of the Sisters of Mercy v Sanlam Life Assurance Limited & another (Environment and Land Case 108 of 2017) [2025] KEELC 8597 (KLR)

Environment and Land Court
10 December 2025
2,055 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused a defendant's late attempt to add witnesses and documents nine years after trial preparation ended, protecting the plaintiff from unfair surprise.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (Christine Ochieng, J) determined the 1st Defendant's Notice of Motion dated 8th July 2025 seeking leave to file a supplementary list of witnesses and witness statements, and to deem a further list and bundle of documents duly filed, after conclusion of pre-trial procedures and after the Plaintiff's four witnesses had testified. The 1st Defendant, through its Group Legal Officer Emma Muthoni Wachira, argued that evidence had emerged during hearing - including a Xenocon Consulting Engineers report and a jointly prepared Mapsoft Systems Ltd report - that was necessary for a fair determination of liability and quantum for the collapse of a boundary wall and damage to the Plaintiff's property occasioned by construction of an eighteen-storey building on an adjacent parcel. The Plaintiff, through Sister Anne Itotia, opposed, noting pleadings closed nine years earlier, the new evidence sought to introduce unpleaded issues, and that the Mapsoft report was prepared during failed out-of-court settlement negotiations and was privileged under Section 23 of the Evidence Act. The court framed a sole issue: whether to exercise discretion to allow additional evidence after the plaintiff's case. Relying on Raila Odinga v IEBC and Marcus Kibuku Nimrod, and the Kirui v Mwangi without-prejudice test, the court held the application prejudicial, late and an attempt to fill a lacuna in the defence case, amounting to 'stealing a match'. The application was found unmerited and disallowed, with costs in the cause.

Questions the Court framed

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

  1. 1.Whether the Court should exercise its discretion to allow the 1st Defendant to file additional evidence after the Plaintiff's witnesses had tendered their evidence

Key legal issues

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01

Whether leave should be granted to introduce additional witnesses and documents after the plaintiff's case had closed

Holding

The application was unmerited; leave was refused because allowing it would prejudice the plaintiff and amount to 'stealing a match', with no plausible explanation for the delay

Reasoning

The court associated itself with the Raila Odinga test (fair and level playing field; caution where new material is substantial) and the Marcus Kibuku Nimrod criteria (reason for delay, stage of proceedings, prejudice). Pleadings closed nine years prior, four plaintiff witnesses had testified, the documents were voluminous, and the report sought to be produced was prepared during failed settlement negotiations. The fresh evidence sought to cure a lacuna in the defendant's case.

p. 4
02

Whether the Mapsoft Systems Ltd report (17th January 2025) is privileged as a without-prejudice settlement document

Holding

The court accepted it would be unjust to allow its production, treating it as prepared during out-of-court settlement negotiations

Reasoning

The plaintiff contended the report was jointly prepared during failed settlement attempts and was privileged under Section 23 of the Evidence Act. The court cited the Kirui v Mwangi test that protection attaches only to documents made in furtherance of settlement negotiations, and found producing a report prepared during negotiations would amount to stealing a match on the plaintiff.

p. 4

Legal principles established

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  • A trial court may, in keeping with Article 50's fair-hearing guarantee, allow late introduction of statements and documents, considering the reason for the delay, the stage of proceedings and the prejudice to the other party
  • A document attracts 'without prejudice' protection only if it was made in furtherance of negotiations to settle a dispute

Court orders

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  1. 1.The 1st Defendant's Notice of Motion dated 8th July 2025 seeking leave to file a supplementary list of witnesses and witness statements is disallowed/unmerited
  2. 2.Costs to be in the cause

The bench

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

Wrote the judgment

Jurisdiction invoked
Inherent discretion of the trial court under the Civil Procedure Rules, informed by Article 50 of the Constitution (fair hearing)

Relief refused

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Leave to avail/produce a supplementary list of witnesses and witness statements post conclusion of pre-trial procedures, and to deem the supplementary witness statements and list of documents duly filed and served

It would be prejudicial to the Plaintiff, whose four witnesses had already testified; the documents were voluminous, sought to fill a lacuna in the 1st Defendant's case, and no plausible reason was given for the delay of nine years after the pre-trial conference; document No. 8 was prepared during out-of-court settlement negotiations

p. 4

Costs

Costs will be in the cause.

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.

In the foregoing, I find the instant Notice of Motion application unmerited and will disallow it.
p. 4Disposition - dismissal of the application for leave to adduce additional evidence
Costs will be in the cause.
p. 4Costs order
I opine that it will amount to stealing a match against the Plaintifi if the 1st Defendant was allowed to present a report which had been prepared during the period the parties were negotiating out of Court.
p. 4Prejudice and without-prejudice material
I further find that the 1st Defendant has failed to provide plausible reasons why it seeks to present fresh witnesses and documents, nine (9) years after the pre trial conference.
p. 4Reasons for late application
Each case will however be decided on its own peculiar circumstances and among the issues that the Court will take into account before granting such leave may include the reason why the statements and documents were not filed at the right time, the stage of the proceedings and the prejudice that may be caused to the other party.
p. 4Test for granting leave to file additional evidence (as cited from Marcus Kibuku Nimrod)

Issues in the judgment

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minor

The re Estate of the Late William Morogo authority is listed twice identically in the 1st Defendant's list of citations

minor

The case number and full party names are not stated in the judgment text provided; the parties are referred to only as Plaintiff, 1st Defendant and 2nd Defendant

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, "Registered Trustees of the Sisters of Mercy v Sanlam Life Assurance Limited & another (Environment and Land Case 108 of 2017) [2025] KEELC 8597 (KLR)", Case Analysis (2025). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8597/eng@2025-12-10

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