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ELCDismissedConsolidated suits instituted in 2016 (number not stated in judgment)

United States International University & 2 others v Janmohamed (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi) & 10 others (Environment and Land Case 840, 771 & 1040 of 2016 (Consolidated)) [2026] KEELC 2892 (KLR)

Environment and Land Court
8 May 2026
2,697 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused the Moi estate's late attempt to add evidence and recall witnesses in a decade-old land dispute, punishing tactical delay with costs.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (M.D. Mwangi J) determines a Notice of Motion dated 6th March 2026 by the 1st Defendant in consolidated land suits instituted in 2016 concerning L.R. No. 12422/19. The Applicant, the Executrix of the Estate of the late President Moi, sought leave to file a Further/Supplementary List and Bundle of Documents and to recall two discharged witnesses of the 2nd Plaintiff, Dr. James N. Mwangi and Mrs. Mary Kiarie, for further cross-examination. The proposed materials comprised pleadings and the judgment in Nairobi ELC Case No. E038 of 2020 (Mount Pleasant Limited v James Njuguna Mwangi & Others), delivered on 23rd October 2025, concerning the 'Getrude Property' (L.R. No. 214/832) purchased from the late President Moi. The 2nd Plaintiff, the Attorney General, the 6th Defendant and others opposed, arguing irrelevance, laches, delay and abuse of process. Framing three issues, the Court applied the Supreme Court's principles in Mohammed Abdi Mohamud and held that the application failed fundamentally on diligence and relevance: the pleadings and transactions were matters of public record known to the Applicant, who had cross-examined Dr. Mwangi on them in December 2023; only the judgment itself was new. The proposed evidence concerned an unrelated parcel and was speculative, voluminous (over 500 pages) and directed at impugning witness credibility. The recall prayer under Section 146(4) of the Evidence Act failed because the discretion is not automatic and no ambiguity was shown. The Court characterised the motion as a fishing expedition and tactical ambush, dismissed it in its entirety, and awarded costs to the 2nd Plaintiff.

Questions the Court framed

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

  1. 1.Whether the Applicant has demonstrated the existence of new and important evidence that was not available at the time of the Pre-Trial Conference or during the witnesses' testimony
  2. 2.Whether the pleadings and Judgment in Nairobi ELC Case No. E038 of 2020 are sufficiently relevant to the issues in the current consolidated suit to warrant their admission
  3. 3.Whether the 1st Defendant has established a proper basis under Section 146(4) of the Evidence Act to recall discharged witnesses for further cross-examination

Key legal issues

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01

Admission of additional evidence after commencement of trial

Holding

The jurisdiction is narrow and exceptional; the Applicant failed on diligence and relevance

Reasoning

The Court applied the Mohammed Abdi Mohamud principles, holding that the pleadings and transactional documents from the Mount Pleasant suit were public record known to the Applicant for years, that only the October 2025 judgment was new, and that documents concerning an unrelated parcel (L.R. No. 214/832) lacked probative relevance to the ownership dispute over L.R. No. 12422/19. The voluminous 500-page bundle also offended the principle against evidence difficult to respond to.

p. 4
02

Recall of discharged witnesses under Section 146(4) of the Evidence Act

Holding

The word 'may' confers discretion, not entitlement; recall was refused as no ambiguity was shown

Reasoning

The witnesses had been extensively cross-examined by all parties and discharged. The Applicant demonstrated no ambiguity requiring clarification; the recall was aimed at expanding cross-examination into areas arising from subsequent strategic developments, contrary to finality and the overriding objective under Sections 1A and 1B of the Civil Procedure Act.

p. 6

Legal principles established

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  • Litigation cannot proceed on the basis of tactical ambush; a party cannot withhold evidence during trial and seek to reopen the case once a collateral judgment proves useful
  • A litigant cannot convert old facts into new evidence merely because another court later renders a judgment touching on those facts

Court orders

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  1. 1.The Notice of Motion dated 6th March 2026 is dismissed in its entirety
  2. 2.Costs of the application awarded to the 2nd Plaintiff

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 50(1) and 159(2) of the Constitution of Kenya; Sections 1A, 1B and 3A of the Civil Procedure Act; Section 146(4) of the Evidence Act
Consolidated with
Consolidated suits concerning L.R. No. 12422/19 (individual suit numbers not stated)

Relief refused

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Leave to file and serve a Further/Supplementary List and Bundle of Documents

Applicant failed the diligence and relevance requirements; the pleadings in ELC Case No. E038 of 2020 were matters of public record long before trial

p. 5

Leave to recall Dr. James N. Mwangi and Mrs. Mary Kiarie for further cross-examination under Section 146(4) of the Evidence Act

Discretion under Section 146(4) is not entitlement; no material ambiguity demonstrated and the application is a fishing expedition

p. 6

Costs

Costs to the 2nd Plaintiff

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.

This Court must state without equivocation that litigation cannot proceed on the basis of tactical ambush.
p. 5finality and procedural discipline
The mere fact that the same individuals participated in unrelated land transactions does not establish probative relevance to the ownership dispute presently before this Court.
p. 5relevance of proposed evidence
The discretion to reopen a case and admit further evidence must be exercised sparingly and with abundant caution.
p. 6discretion to reopen (adopting Susan Wavinya Mutavi v Isaac Njoroge)
Accordingly, the Notice of Motion dated 6th March 2026 is hereby dismissed in its entirety with costs to the 2nd Plaintiff.
p. 7final orders

Issues in the judgment

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minor

Paragraph numbering is inconsistent - two paragraphs are numbered 9 and the sequence jumps from 33 to 35, omitting paragraph 34

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, "United States International University & 2 others v Janmohamed (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi) & 10 others (Environment and Land Case 840, 771 & 1040 of 2016 (Consolidated)) [2026] KEELC 2892 (KLR)", Case Analysis (2026). Consolidated suits instituted in 2016 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2892/eng@2026-05-08

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