REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI ELC OS NO. 1 OF 2021 JOSEPHAT THUO GITHACHURI……………………………… PLAINTIFF =VERSUS= JAMES GAITHO KIBUE..........................……….….……..1ST DEFENDANT KIMANI KIBUE KANYUA...............................................2ND DEFENDANT LUCY NJOKI GAITHO.................................................3RD DEFENDANT DANIEL KIBUE GATIHO................................................4TH DEFENDANT RULING 1. This matter came up for the Defence hearing of 3 rd June 2026, when Ms Were, Counsel for the Plaintiff, made an oral application for leave to produce the Land Control Board form as evidence. Counsel argued that the document was essential for the just determination of the dispute. Counsel informed the Court that the document had been filed and was part of the record. 2. The application was opposed by Mr Nyariki, who argued that the Plaintiff had already closed its case and that the 5th Defendant had likewise closed its case. Counsel argued ELC OS NO. 1 OF 2021 1
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that allowing the document at this stage would amount to reopening the Plaintiff's case, thereby prejudicing the Defendants. 3. I have considered the oral application and the submissions made in opposition thereto. The admission of additional documents after a party has closed its case is a matter within the Court’s discretion, which must be exercised judiciously. In James Mwangi Ng’ang’a –Vs- Kenyatta University Council & 4 others (2009) KLR, the Court of Appeal adopted the judgment of Lord Denning in Ladd –Vs- Marshall (1954)1 WLR,1489, in which the Court of Appeal for Eastern Africa stated that; “except in cases where the Application for additional evidence is based on fraud or surprise, to justify reception of fresh evidence or a new trial, three conditions must be fulfilled; first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; Secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; Thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.” ELC OS NO. 1 OF 2021 2
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4. In the matter at hand, the Plaintiff contends that the document is already part of the Court record. However, no explanation has been offered as to why the document was not produced during the Plaintiff’s case. The document has not been marked for identification. The application was made after both the Plaintiff and the Defendant had closed their respective cases. The mere act of filing a document does not render it evidence. The fact that the document is on record does not by itself justify its admission. 5. In the absence of any satisfactory explanation for the failure to produce the document during the Plaintiff’s case, I find there is no sufficient basis to reopen the Plaintiff’s case to admit the document. 6. In light of the foregoing, the application is hereby dismissed. RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 31ST DAY OF JULY 2026. ………………………… HON. T. MURIGI JUDGE IN THE PRESENCE OF: Ms Were holding brief for Muchoki for the Plaintiff Vena-Court Assistant ELC OS NO. 1 OF 2021 3
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