Chacha & another v Getene (Environment and Land Appeal E008 of 2026) [2026] KEELC 5255 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that courts won't let litigants add documents mid-trial to fix gaps exposed by cross-examination.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.The standard applicable to this Court's review of the trial court's exercise of discretion
- 2.Whether the Learned Trial Magistrate misapprehended or misapplied the governing principles on the admission of additional documentary evidence during trial
- 3.Whether the finding that the Appellants were on a 'fishing expedition' to fill gaps in their case, as opposed to adducing genuinely new evidence, is borne out by the record
- 4.Whether the trial court erred in its treatment of prejudice to the Respondent and the balance of convenience
- 5.Whether it was erroneous to require prior annexation of the documents sought to be produced under the Notice to Produce
- 6.Whether Article 159(2)(d) of the Constitution avails the Appellants in the circumstances
Key legal issues
#Standard of appellate review of discretionary decisions
The trial magistrate's discretion was properly exercised and the appellate court cannot substitute its own view merely because it would have decided differently
Relying on Mbogo v Shah, Supermarine Handling Services, Farah Awad Gullet and Edward Sargent, the court restated that interference is warranted only where discretion was exercised injudiciously, on wrong principles, with misdirection, or where the decision is plainly wrong occasioning a miscarriage of justice. None of these was demonstrated on the record.
Admission of additional documentary evidence during trial
The correct principles are the trial-stage re-opening principles (diligence, no gap-filling, no undue delay, no prejudice), not the appellate additional-evidence guidelines in Mohamed Abdi Mahamud; but the trial court's substance tracked the correct test
The court distinguished the jurisdiction under Section 78 of the Civil Procedure Act (additional evidence on appeal) from trial-stage applications, yet held the common considerations (diligence, absence of gap-filling motive, delay, prejudice) were the very ones the trial magistrate applied. Mis-citation of an appellate-evidence authority does not amount to misdirection where the substance of the reasoning is correct.
Fishing expedition / gap-filling finding
The finding that the application was a fishing expedition to fill gaps was reasonably open on the record given the sequence of events and the absence of evidence of diligence
PW3 was stood down for want of documents, the Appellants were cross-examined, and only then did they seek the documents. The 2nd Appellant's account rested on an unnamed friend, an undocumented visit to Ardhi House, and an oral refusal by unidentified officials. No formal written application to any office was exhibited, and the Fair Administrative Action Act and judicial review were available but unexhausted remedies.
Prejudice and balance of convenience
Granting the application would cause real prejudice through delay, recall of witnesses and interruption of a part-heard trial; the discretion to re-open should be exercised sparingly
Following Interactive Gaming, Techbiz, Mudwasi and Wanje v A.K. Saikwa, the court held that curable prejudice is a factor, not an invariable rule; the hearing had progressed with two witnesses cross-examined and this was the second such application. Trial-by-instalments is what Order 3 Rule 2, Order 7 Rule 5 and the ELC Practice Directions forestall.
Prior annexation under a Notice to Produce
Non-annexation alone is not a sufficient ground to dismiss a Notice to Produce, but the Ruling did not rest on that strand alone; the imprecision does not warrant interference
The court accepted counsel's submission that a Notice to Produce cannot be conditional on annexing the very documents sought, citing Safaricom Plc. However, read as a whole the Ruling rested cumulatively on absence of documented application, the photocopy PMFI-1, and the gap-filling character of the application. One imprecise strand does not invalidate a sound exercise of discretion.
Article 159(2)(d) - procedural technicalities
Article 159(2)(d) does not avail the Appellants; substantive justice does not override procedure or excuse delay in a part-heard suit
The court balanced Article 159(2)(d) against Article 159(2)(b) (justice without unreasonable delay), citing Salat v IEBC for the proposition that Article 159 was never intended to destroy rules of procedure. The suit had undergone a preliminary objection, transfer, amendment and part-hearing; the court also noted the matter had proceeded to further hearing after the Ruling, rendering the appeal arguably academic.
Legal principles established
#- An appellate court will not interfere with a trial court's exercise of discretion unless it misdirected itself, took into account irrelevant matters, omitted relevant ones, or arrived at a decision so plainly wrong as to occasion a miscarriage of justice
- Supporting documents should be filed with pleadings; additional documents after pleadings are allowed only in extremely rare and exceptional circumstances with leave of court
- A party seeking exercise of the court's discretion to admit late evidence must exhibit a documentary trail of the diligence relied upon
- A Notice to Produce under Section 69 of the Evidence Act must be directed to parties only, state each document required with certainty, and demonstrate the recipient has possession or power over the documents
- Article 159(2)(d) does not dispense with procedure or permit indefinite re-litigation of a substantially heard matter
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The suit, Kehancha SPM Court ELC Case No. E014 of 2025, is to proceed forthwith for further hearing and determination on its merits before the trial court, unless otherwise forestalled or stopped by other lawful means
- 3.The Appellants shall bear the costs of this appeal
- 4.The judgment be printed and a copy placed in the file; the original lower court file together with this judgment be forwarded forthwith to the trial Court for further action
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrate's Court, Kehancha
- ELC Case No. E014 of 2025
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Senior Principal Magistrate's Court
Relief refused
#Allowance of the appeal and setting aside of the trial court's Ruling dismissing the Motion for leave to file a Supplementary List of Documents and for a Notice to Produce Order against the Director, National Land Commission
The trial court's exercise of discretion disclosed no misdirection; the application was a fishing expedition to fill evidentiary gaps exposed in cross-examination and the Appellants failed to demonstrate reasonable diligence
Costs
The Appellants shall bear the costs of this appeal
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.
The appeal be and is hereby dismissed in its entirety.
The suit, namely, Kehancha SPM Court ELC Case No. E014 of 2025, is to proceed forthwith for further hearing and determination on its merits before the trial court, unless otherwise forestalled or stopped by other lawful means
The Appellants shall bear the costs of this appeal.
Only in extremely rare and exceptional circumstances that they are allowed with leave of the Court to file additional documents after filing their pleadings.
The prayer sought to be granted if it be permitted is, precisely, trial-by-instalments, which Order 3 Rule 2, Order 7 Rule 5 of the Civil Procedure Rules, 2010 and Rule 28 of the Environment and Land Court Practice Directions are designed to forestall.
Article 159 was never intended "to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice."
Issues in the judgment
#Date of impugned ruling and appeal timeline appear internally inconsistent with the filing of the appeal
Citation of Johana Kipkemei Too v Hellen Tum appears with two different citations in the judgment
The judgment notes the suit proceeded to further hearing after the Ruling, raising a possible mootness question the court does not resolve
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chacha & another v Getene (Environment and Land Appeal E008 of 2026) [2026] KEELC 5255 (KLR)", Case Analysis (2026). Environment and Land Appeal arising from Kehancha SPM ELC Case No. E014 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5255/eng@2026-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.