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ELCDismissedELC L Civil Case No. E289 of 2024

Malo Malo BBQ Swahili Cuisine Ltd v Captain Real Estate Company Ltd (Environment and Land Case E289 of 2024) [2026] KEELC 3939 (KLR)

Environment and Land Court
30 June 2026
2,105 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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A Kenyan court refused to admit a secretly recorded conversation as late evidence in a land dispute because it violated the other party's privacy rights.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Nairobi delivered by Christine Ochieng, J, on the Plaintiff's Notice of Motion dated 19th January 2026 in ELC L Civil Case No. E289 of 2024. The Plaintiff sought leave to file and serve additional audio evidence discovered, per its affidavits, around 4th December 2025, after the close of pleadings and filing of the initial bundle, contending the recording was material to the just determination of the suit and would cause no prejudice. The Defendant opposed, arguing inexcusable delay, lack of reasonable diligence, and that the audio was secretly recorded without consent during a negotiation meeting between the parties and their advocates, breaching the right to privacy under Articles 31(c) and (d) of the Constitution and section 28(2)(c) of the Data Protection Act, and was tendered without a certificate under section 106B of the Evidence Act. The court framed a single issue: whether the Plaintiff met the threshold for leave to file additional evidence after the close of pleadings. Relying on Ochieng v Agricultural Development Corporation and the Court of Appeal's decision in Govani v Shah, the court held the threshold is high, that late evidence must not be collected without consent or on a without-prejudice basis, and that the Defendant's privacy was violated. Finding the evidence prejudicial and noting pleadings had closed with no risk of ambush, the court dismissed the application 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 Plaintiff has met the threshold for grant of leave to file and serve additional evidence after the close of pleadings

Key legal issues

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01

Threshold for admitting additional evidence after close of pleadings

Holding

The Plaintiff failed to meet the threshold; the discretion is exercised cautiously and the evidence here was inadmissible and prejudicial

Reasoning

Leave to adduce additional evidence after close of pleadings is a discretionary power exercised in furtherance of the overriding objective. Courts are extremely cautious in permitting late filing to avoid fishing expeditions, manufactured documents, trial by ambush and delay. Here the audio was secretly recorded during a without-prejudice negotiation without the Defendant's consent, violating Articles 31(c) and (d) of the Constitution and section 28(2)(c) of the Data Protection Act. Admitting it would prejudice the Defendant; the application was unmerited.

p. 7

Legal principles established

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  • Additional evidence sought after close of pleadings must not be prejudicial to the opposing party and must not be evidence collected without consent or communicated on a without-prejudice basis
  • Indirect collection of data is permissible only with the subject's consent under the Data Protection Act, and recording a person's communications without consent infringes the constitutional right to privacy

Court orders

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  1. 1.The Notice of Motion dated 19th January 2026 is dismissed (leave to file and serve additional audio evidence is disallowed)
  2. 2.Costs will 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
Environment and Land Court Act, Section 3(1); Civil Procedure Act, Sections 1A and 1B; Article 159(2)(d) of the Constitution

Relief refused

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Leave to file and serve additional audio evidence discovered after the close of pleadings

The audio was secretly recorded without the Defendant's consent during a negotiation meeting, violating the Defendant's right to privacy, and its admission would be prejudicial to the Defendant

p. 12

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 circumstances, I find the instant Notice of Motion application unmerited and will disallow it.
p. 13Final orders - dismissal of the application
Costs will be in the cause.
p. 13Costs order
I find that it would be prejudicial to the Defendant, if the Plaintiff was granted leave to file and serve additional evidence which includes audio evidence.
p. 12Prejudice and privacy bar to admission of secretly recorded evidence
since the Defendant never had knowledge nor consented to the audio recording the Plaintiff seeks to produce, it’s right to privacy was violated.
p. 12Right to privacy under Article 31(c) and (d)

Issues in the judgment

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minor

Internal inconsistency on the date of discovery of the audio evidence: the supporting affidavit refers to discovery around 4th December 2026 (a future date relative to the January 2026 application), while the Defendant's replying affidavit also refers to '4th December 2026' and the supplementary affidavit clarifies the discovery was about 4th December 2025

minor

The judgment is styled 'Ruling' in its header although the task presents it as a judgment; it is an interlocutory ruling on a Notice of Motion

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, "Malo Malo BBQ Swahili Cuisine Ltd v Captain Real Estate Company Ltd (Environment and Land Case E289 of 2024) [2026] KEELC 3939 (KLR)", Case Analysis (2026). ELC L Civil Case No. E289 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3939/eng@2026-06-30

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