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Case Brief · caselaw.co.ke
ELCPartially AllowedELC Suit No. E012 of 2022

The Registered Trustees of Telposta Pension Scheme v The Chief Land Registrar & 4 others

Environment & Land Court of Kenya
28 September 2026
2,427 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed a pension scheme to re-open its case to prove it had the legal right to sue, despite unexplained delay.

What this practically means

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Executive summary

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In this interlocutory ruling, the Environment and Land Court at Kisumu determined a Notice of Motion dated 9th September 2025 by the Registered Trustees of Telposta Pension Scheme, the plaintiff in a land suit seeking cancellation of register entries over Kisumu Municipality/Bock 12/149 and eviction of the 4th and 5th Defendants. The suit had been fully heard, with evidence closing on 22nd February 2025, and was at the submissions stage. The plaintiff, which had pleaded that it is a public pension scheme registered under the Perpetual Succession Act, sought leave to re-open its case solely to produce a certified copy of its certificate of incorporation as proof of its legal capacity to sue, offering the Defendants an opportunity to respond and cross-examine. The 5th Defendant opposed, arguing inordinate unexplained delay, that the plaintiff was filling gaps in its case after both parties closed, and that the application was brought in bad faith after receiving the 5th Defendant's submissions. Applying the additional-evidence principles in Mohamed Abdi Mahamud, Wanjie v Sakwa (Ladd v Marshall), Samuel Kiti Lewa and Raindrops Ltd, the court held that re-opening is a judicious discretion. Although the plaintiff had not explained the delay, the certificate merely proved a status already pleaded, capacity to sue was a live triable issue denied by the 5th Defendant, and refusal would deny the plaintiff a fair trial. The application was allowed in terms of prayers 1 and 3, with costs of Kshs. 20,000/- awarded to the 5th Defendant, payable forthwith.

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 should be allowed to re-open its case to produce additional evidence in the form of its certificate of incorporation

Key legal issues

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01

Whether the Plaintiff should be allowed to re-open its case to produce its certificate of incorporation after both parties closed their cases

Holding

Application allowed; the need to do justice outweighed the Plaintiff's unexplained delay, and the evidence goes to the Plaintiff's capacity to sue, which is a live issue denied by the 5th Defendant

Reasoning

The court reviewed the principles in Mohamed Abdi Mahamud, Wanjie v Sakwa, Samuel Kiti Lewa and Raindrops Ltd, all confirming a judicious discretion to re-open. Although the Plaintiff did not explain the delay, the certificate merely proves a status already pleaded, the 5th Defendant had denied that status making capacity a triable issue, and the Defendants could cross-examine on the document, so no irreparable prejudice arose.

p. 10
02

Whether the application was an attempt to fill gaps in the Plaintiff's case

Holding

No; the document evidences a status already pleaded and is not completely new evidence

Reasoning

The court found the Plaintiff had pleaded in the plaint that it is a public pension scheme registered under the Perpetual Succession Act, and the certificate merely proves that pleaded establishment. Prejudice, if any, could be compensated in costs, and cross-examination would address any concerns about the document.

p. 11

Legal principles established

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  • Whether to re-open a case and admit additional evidence is a discretionary power that must be exercised judiciously, balancing the interest of justice against delay and prejudice
  • Disallowing evidence of a party's pleaded legal status, where capacity to sue is in issue, would deny that party a fair trial

Court orders

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  1. 1.Leave granted to the Plaintiff to re-open its case for the limited purpose of producing a certified copy of its certificate of incorporation (prayer 1)
  2. 2.The Defendants granted an opportunity to respond and/or cross-examine the Plaintiff's witness regarding the document (prayer 3)
  3. 3.Costs of the application awarded to the 5th Defendant, assessed at Kshs. 20,000/-, payable forthwith

The bench

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

majority

Wrote the judgment

majority
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over land registered in Kisumu Municipality/Bock 12/149

Relief refused

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Prayer 2 - order that the certificate of incorporation be admitted in evidence as proof of the Plaintiff's legal capacity to sue and be sued

The application was allowed only in terms of prayers 1 and 3; admission of the document in evidence was not granted at this stage

p. 11

Costs

The costs of the application are awarded to the 5th Defendant and assessed at Kshs. 20,000/-. The same shall be paid forthwith.

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.

The application is allowed in terms of prayers 1 and 3. The costs of the application are awarded to the 5th Defendant and assessed at Kshs. 20,000/-.
p. 11Final orders - re-opening of plaintiff's case allowed with costs to the 5th Defendant
Although the Plaintiff has not explained why the certificate of incorporation could not have been produced earlier, I am of the view that the need to do justice in the circumstances far outweighs that failure.
p. 10Discretion to re-open despite unexplained delay
I am therefore of the view that disallowing the additional evidence sought to be produced by the Plaintiff would deny it a fair trial, which is non-derogable under the Constitution.
p. 11Fair trial as basis for admitting additional evidence
The court retains discretion to allow re-opening of a case. That discretion must be exercised judiciously.
p. 8Judicious exercise of discretion to re-open (quoting Samuel Kiti Lewa)

Issues in the judgment

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material

Coram anomaly: ruling written by one judge at Mombasa but delivered and countersigned by another at Kisumu

minor

Costs of the successful application awarded against the applicant without reasons

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, "The Registered Trustees of Telposta Pension Scheme v The Chief Land Registrar & 4 others", Case Analysis (2026). ELC Suit No. E012 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5827/eng@2026-09-28

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