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ELCAllowedELC CASE NO. E008 OF 2020

Muthomi Mungania & 3 others v Meru County Government & 3 others

Environment and Land Court
24 September 2026
BEB M Eboso
1,378 words in judgment
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The bottom line

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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 Meru (B M Eboso, ELC Judge) on a notice of motion dated 31/1/2026 by the plaintiffs, who sought leave to file and serve a supplementary list of documents, with corresponding leave for the defendants. The application arose mid-trial, while PW3 was testifying, after the 2nd and 3rd defendants objected to the production of Group WhatsApp Messages contained in the plaintiffs' trial bundle. The court had, in a ruling of 19/1/2026, held the messages admissible subject to compliance with Section 106B of the Evidence Act. The plaintiffs subsequently procured an electronic certificate - the only new document - and sought to introduce it. The 2nd and 3rd defendants opposed via grounds of objection and submissions, arguing that pleadings had closed, that Order 11 required trial documents to be filed before closure of pre-trial, and that the certificate was procured only after the objection was raised. The court applied Court of Appeal jurisprudence on Section 106B, including John Lokitare Lodinyo and County Assembly of Kisumu, and held that since the plaintiffs had not closed their case, the electronic records had been served before trial without objection, and the defendants tendered no evidence of prejudice, leave should issue, with corresponding leave to the defendants as a safeguard. The application was allowed in terms of prayers 1 and 2, 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 a proper case has been made to warrant the granting of leave to the plaintiffs to file and serve a supplementary list of documents at this stage of the proceedings.

Key legal issues

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01

Whether leave should be granted to file a supplementary list of documents after commencement of trial

Holding

Leave was granted because the plaintiffs had not closed their case, the evidence had been served earlier without objection, and the defendants showed no prejudice; defendants received corresponding leave.

Reasoning

The application was prompted by defendants' trial-stage objection to WhatsApp messages. The court noted the bundle had been served at pre-trial without objection, the certificate complied with Section 106B of the Evidence Act, and no evidence of prejudice was tendered. Corresponding leave for defendants was the safeguard.

p. 6
02

Rationale for Section 106B of the Evidence Act certification requirement

Holding

The certification requirement is mandatory and exists to vouchsafe the authenticity and integrity of electronic records.

Reasoning

Relying on Court of Appeal authority, the court traced the 2009 introduction of Section 106B and the stringent conditions in Section 106B(2) designed to prevent admission of manipulated electronic evidence, explaining the shift from the earlier best evidence and hearsay exclusions.

p. 5

Legal principles established

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  • Before a party closes its case, the court may grant leave to introduce a supplementary list of trial documents where no prejudice is shown by the opposing party, with corresponding leave to the other side as a safeguard.

Court orders

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  1. 1.Leave granted to the plaintiffs to file and serve a supplementary list of documents (prayer 1)
  2. 2.Corresponding leave granted to the defendants to file and serve supplementary lists of documents should they deem it necessary (prayer 2)
  3. 3.Costs of the application in the cause

The bench

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

BE
majority

Wrote the judgment

Jurisdiction invoked
Inherent leave power under the Civil Procedure Rules governing trial documents (Order 11) in a suit before the Environment and Land Court

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 court takes the view that at this stage where the plaintiffs have not closed their case, they can properly be allowed to introduce the additional list of documents without exposing the defendants to any prejudice.
p. 6Leave to file supplementary documents during trial
In the end, for the above reasons, the application dated 31/1/2026 is allowed in terms of prayers 1 and 2. Costs of the application shall be in the cause.
p. 7Disposition and costs
They have, however, not tendered evidence of any prejudice which they are likely to suffer if the plaintiffs are allowed to introduce the electronic evidence, which in any event, was served upon them prior to commencement of trial.
p. 6Absence of demonstrated prejudice

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, "Muthomi Mungania & 3 others v Meru County Government & 3 others", Case Analysis (2026). ELC CASE NO. E008 OF 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5885/eng@2026-09-24

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