Mombasa Wonderpark Limited v Mombasa Parents Club (Nyali Primary School & Kindergarten) & 5 others

CABINET SECRETARY TO THE TREASURY OF KENYA .......................................... 3RD RESPONDENT CHIEF REGISTRAR OF TITLES .............................. 4TH RESPONDENT CHIEF LAND REGISTRAR ..................................... 5TH RESPONDENT THE ATTORNEY GENERAL ................................... 6TH RESPONDENT RULING A. INTRODUCTION AND BACKGROUND 1. A trial is not a game of ambush, but neither is it a ritual in which relevant truth must be shut out merely because it arrived after the appointed hour. The Court’s task is to preserve both sides of that balance: finality and orderly procedure on the one hand, and a fair determination upon the best available material on the other. The Petitioner’s Notice of Motion dated 11th June 2026 asks the Court to reopen a hearing already closed so that recently obtained public records may be placed before it. That is the narrow but consequential question for determination. 2. The Petitioner, Mombasa Wonderpark Limited, instituted this constitutional RULING: ELCPET/E002/2023 Page2 of 17 petition against the Respondents

page 2 of 17

concerning competing claims, survey records and an alleged parallel title affecting land in Nyali, Mombasa. The Petition invokes Articles 10, 19, 20, 21, 22, 23, 40, 47 and 64 of the Constitution and the Fair Administrative Action Act, 2015. The merits of those claims are not before the Court in this interlocutory Ruling. 3. The Petitioner’s case and the Respondents’ cases have been heard and closed. Before judgment, the Petitioner filed the present Motion upon learning that a supplementary trial bundle had been filed in Environment and Land Court Constitutional Petition No. E032 of 2022, one of four related petitions. The Petitioner says that the bundle contains certified documents emanating from the 2nd Respondent and the Director of Surveys which bear upon the common survey and title history in dispute. B. THE APPLICATION AND RELIEFS 4. The Notice of Motion dated 11th June 2026 is expressed to be brought under Article 159(2)(d) of the Constitution; sections 3, 13(5), 16 and 19 of the Environment and Land Court Act; sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 51 rules 1 and 10 of the Civil Procedure Rules; and all other enabling provisions of the law. It seeks the following orders: a. THAT the Application be certified as urgent and be heard ex parte in the first instance (spent). RULING: ELCPET/E002/2023 Page3 of 17

page 3 of 17

b. THAT this Honourable Court be pleased to reopen the Petitioner’s case herein and grant leave to the Petitioner to file a Supplementary List of Documents and List of Witnesses. c. THAT this Honourable Court do make such further or better orders as will meet the ends of justice. d. THAT costs of the Application be in the cause. 5. Prayer 1 was spent at the preliminary stage. The live relief is therefore prayer 2, together with the consequential powers invoked under prayers 3 and 4. C. THE PETITIONER’S CASE 6. The Motion is supported by the affidavit of Winnie Julu, Advocate, sworn on 11th June 2026. She deposes that counsel has conduct of the matter for the Petitioner; that all parties have closed their cases; and that there are related proceedings, namely ELC Constitutional Petition Nos. E024, E030, E031 and E032 of 2022, which concern neighbouring parcels and an alleged parallel title said to encompass several of them. 7. The supporting affidavit identifies three sets of annexures. WJ-1 comprises copies of the related petitions, including Constitutional Petition No. E032 of 2022 as consolidated RULING: ELCPET/E002/2023 Page4 of 17

page 4 of 17

with Constitutional Petition Nos. E031, E030 and E024 of 2022. WJ-2 is a copy of the Petition in Constitutional Petition No. E024 of 2022, in which the Petitioner’s advocates also act. WJ-3 is the Petitioner’s Supplementary Trial Bundle dated 5th June 2026 filed in Constitutional Petition No. E032 of 2022. 8. The Petitioner says the related petitions arise from an alleged parallel title deed affecting neighbouring parcels, including Plot Number 20431/I/MN said to have been created from MN/I/10768. the It subdivision contends that of Plot Number the newly obtained documents are material to the provenance of the competing survey plans and titles and to the legality of the administrative decisions challenged in this Petition. 9. The proposed Supplementary Trial Bundle contains seven documents, namely: a letter to the National Land Commission dated 18th February 2026 and certified on 3rd June 2026; a National Land Commission letter dated 14th February 2017 and certified on 3rd June 2026; a National Land Commission letter dated 6th April 2017 and certified on 6th June 2026; a letter to the Director of Surveys dated 11th May 2026; an internal memorandum from the Director of Surveys dated 6th certified on 5th November 2020 and June 2026; a certified copy of F/R No. 630/124; and a certified copy of F/R No. 273/43. RULING: ELCPET/E002/2023 Page5 of 17

page 5 of 17

10. On their face, the National Land Commission letters address Plot Numbers the status of MN/I/10071 and MN/I/10072 and MN/I/10070, record the Commission’s then position concerning their processing, registration and the absence of recorded encumbrances. The letter dated 6th April 2017 refers to those parcels as lying next to Nyali Primary School and confirms the authenticity of an earlier investigative letter. 11. The internal memorandum dated 6th November 2020 concerns Plot Number MN/I/22457, Deed Plan No. 442310 and F/R No. 630/124. It records a survey-office finding that F/R No. 630/124 overlaps F/R No. 273/43, which contains Plot Numbers MN/I/10069, MN/I/10070, MN/I/10071 and MN/I/10072, and recommends cancellation of F/R No. 630/124. The two certified survey plans are tendered as the spatial foundation for that assertion. 12. The Petitioner argues that the records were only obtained and certified in June 2026; that the 2nd Respondent, though a party to this Petition, did not produce them during the trial; and that they could therefore not reasonably have been presented earlier in their present certified form. It maintains that reopening will assist the Court to determine the real controversy and will not prejudice any Respondent because each will retain the right to answer the documents and cross-examine any witness called to produce them. RULING: ELCPET/E002/2023 Page6 of 17

page 6 of 17

D. THE FIRST RESPONDENT’S RESPONSE 13. The 1st Respondent answered the Motion through a replying affidavit sworn by its advocate, Moses Waweru Ndung’u, on 27th August 2026 and filed on 31st August 2026. The affidavit expressly states that the 1st Respondent has no objection to the orders sought. 14. That concession is, however, qualified. The 1st Respondent states that reopening the case would effectively return the matter to hearing and that it would require leave to amend its response and file additional documents addressing the new material. It also asks that this Petition be consolidated with ELC Constitutional Petition Nos. E024, E030, E031 and E032 of 2022, which it says are already consolidated and were scheduled for mention before the Deputy Registrar on 19th October 2026. 15. The material placed before the Court contains no separate affidavit opposing the Motion on behalf of the 2nd to 6th Respondents. The matter was mentioned on the 11th of June, 2026 and all the respondents being present indicated that they do not oppose the Application. On 17th September, 2026, whilst in court, Advocate for the 2 nd Respondent Mr. Atuti indicated that though they have not filed their Replying Affidavit, they do not object to the Motion, and prayed to have this case consolidated with the other related matters. Mr Paul Waga, Senior State Counsel representing the 3rd to 6th Respondents on the same RULING: ELCPET/E002/2023 Page7 of 17

page 7 of 17

day indicated that they will not participate in the Application. E. ISSUE FOR DETERMINATION 16. The principal issue is whether the Petitioner has established a proper basis for reopening its case to file and adduce the proposed supplementary documents and to call the necessary witnesses. Incidental to that issue are the safeguards required to prevent prejudice and the 1st Respondent’s request for consolidation. F. APPLICABLE LAW AND PRINCIPLES 17. The Court’s power to reopen a case is discretionary. It is anchored in its inherent jurisdiction under section 3A of the Civil Procedure Act and rule 3(8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, which preserve the Court’s power to make orders necessary for the ends of justice and to prevent abuse of process. It is also informed by Article 159(2)(d) of the Constitution and the overriding objective in sections 1A and 1B of the Civil Procedure Act. 18. Where reopening entails recalling a witness, section 146(4) of the Evidence Act permits the Court to allow further examination-in-chief or cross-examination and expressly preserves the corresponding rights of the opposite parties. Order 18 rule 10 of the Civil Procedure Rules similarly allows the Court, at any stage of a suit, to recall a witness RULING: ELCPET/E002/2023 Page8 of 17

page 8 of 17

who has already been examined. These powers are broad, but they are not unstructured. 19. In Raindrops Limited v County Government of Kilifi [2021] KEHC 5319 (KLR), the Court distilled the governing considerations in re-opening a case, that is a) the discretion must be exercised judiciously; b) reopening should not embarrass or prejudice the opposite party; c) it should not be used to fill gaps deliberately left in a party’s evidence; d) inordinate and unexplained delay is material; e) the applicant must show that the evidence could not, with reasonable diligence, have been obtained at the hearing; and f) the proposed evidence should be apparently credible and capable of materially influencing the result, though it need not be decisive. 20. The same caution appears in Samuel Kiti Lewa Housing Finance Co. of [2015] KEHC 3930 (KLR), Kenya where Ltd the v & another Court declined reopening that would merely permit a party to repair defects in its proof. Conversely, Techbiz Limited v Royal Media Services Limited [2021] KEHC 3272 (KLR) recognises that the Court may reopen a case where the additional evidence RULING: ELCPET/E002/2023 Page9 of 17 is material and fairness can be

page 9 of 17

preserved by granting the adverse party a corresponding opportunity to answer it. 21. The timing of disclosure remains important. In Too v Tum [2014] KEELC 512 (KLR), the Court emphasised that late evidence should not be introduced in a manner that ambushes the other side after the evidentiary cards have been laid on the table. Yet lateness is not by itself fatal. In David Njane t/a Arwings Twin Service Station & another v Total Kenya Ltd [2022] KEHC 10489 (KLR), further documents were admitted after closure of a case subject to recall, reciprocal leave, priority hearing and an order as to costs. 22. The governing inquiry is therefore practical rather than mechanical. The Court must consider relevance, explanation for non-production, diligence, apparent credibility, the stage reached, the extent of disruption, and whether prejudice can be cured through disclosure, time to respond, crossexamination, rebuttal evidence and costs. Reopening must remain an instrument of justice, not a licence for evidential reconstruction. G. ANALYSIS AND DETERMINATION 23. The first question is relevance. The proposed documents do not all bear the number of the parcel directly pleaded by the Petitioner. They concern neighbouring titles and two survey plans said to overlap. That distinction is important, but it is not dispositive. The Petitioner’s pleaded case is that a RULING: ELCPET/E002/2023 Page10 of 17

page 10 of 17

parallel title was created through a common survey and administrative process affecting a cluster of neighbouring parcels derived from the same area. Material relating to the provenance, official treatment and alleged overlap of the relevant survey plans is therefore prima facie connected to the controversy. 24. The internal memorandum and certified survey plans, in particular, are capable of assisting the Court to understand whether the alleged overlap is merely an assertion by one litigant or a position reflected in the records of the survey authority. The National Land Commission letters may also illuminate the administrative history and the positions previously communicated by a constitutional commission that is itself a party to the Petition. Their ultimate probative value is a matter for judgment after production, crossexamination and submissions, and therefore at this stage the Court need only be satisfied that they are sufficiently relevant to warrant reception. 25. Second, the explanation for non-production is reasonable. The documents themselves predate the closure of the trial, but the material before Court shows that certified copies were sought in February and May 2026 and were certified by the relevant public offices between 3rd June 2026 and 6th June 2026. The supplementary bundle in the related Petition was dated 5th June 2026, and the present Motion followed on 11th June 2026. The sequence does not reveal RULING: ELCPET/E002/2023 Page11 of 17

page 11 of 17

indolence or tactical withholding. It reveals recent access to official copies previously held by public institutions. 26. Third, is the issue of diligence and whether there was inordinate delay after discovery. The Petitioner as indicated above moved within days of the certifications and of becoming aware of the supplementary bundle in the related proceeding. That promptness weighs strongly in favour of the exercise of discretion. 27. Fourth, is whether the evidence is apparently credible for the limited purpose of reopening. Several documents bear certification stamps from the National Land Commission or the Director of Surveys. That does not make their contents conclusive, nor does it dispense with formal proof where required. It does, however, distinguish the application from one founded upon unexplained, anonymous or facially unreliable material. The Motion thus succeeds on this limb. 28. The Fifth and final limb is whether the proposed evidence may have an important influence on the determination. The Court will ultimately be required to resolve questions of title, survey history, administrative legality and alleged overlap. Official letters, an internal survey memorandum and the underlying survey plans are capable of assisting that determination. Excluding them without interrogation would risk deciding a technical land dispute upon an artificially incomplete public record. RULING: ELCPET/E002/2023 Page12 of 17

page 12 of 17

29. The Court is alive to the concern that reopening a case after all parties have closed their respective cases may prolong the proceedings and expose the Respondents to evidence which was not before them when they testified. That prejudice is, however, capable of being cured by affording the Respondents adequate notice of the supplementary evidence, an opportunity to respond to it, and the right to cross-examine any witness called by the Petitioner. 30. Reopening the Petitioner’s case does not set aside the evidence already taken, commence the hearing de novo, or confer an unrestricted right to reconstruct the Petitioner’s case. The reopened hearing shall be confined to the supplementary documentary and oral evidence contemplated in the Notice of Motion dated 11th June 2026 and the supporting affidavit sworn by Winnie Julu on the same date, together with any evidence reasonably necessary for its formal production and explanation. 31. Correspondingly, the Respondents shall be at liberty to file and adduce evidence strictly in answer to the supplementary evidence and, where necessary, to seek leave to recall a witness for that limited purpose. This preserves equality of arms and eliminates any procedural advantage that might otherwise arise from the late introduction of evidence. 32. For completeness, leave to file supplementary evidence does not amount to its automatic admission. Questions RULING: ELCPET/E002/2023 Page13 of 17

page 13 of 17

concerning relevance, admissibility, authenticity, mode of production and evidential weight shall remain open for determination at the resumed hearing and, where appropriate, in the final judgment. 33. The Court is therefore satisfied that the interests of justice favour reopening the Petitioner’s case on the controlled terms set out in the final orders. H. REQUEST FOR CONSOLIDATION 34. The request to consolidate this Petition with ELC Constitutional Petition Nos. E024, E030, E031 and E032 of 2022 is not one of the prayers in the Motion. It appears only in the 1st Respondent’s replying affidavit. The parties in the related petitions have not been heard upon it, the full records and procedural posture of those matters are not before this Court, and the present Petition has already reached the close of evidence. 35. Consolidation is a case-management decision with consequences for every party in each proceeding. It should not be ordered collaterally on an unpleaded request in response to an application for reopening. The request is therefore at this point declined without prejudice to a properly framed application, or to appropriate case- management directions after notice to all parties in the affected petitions. RULING: ELCPET/E002/2023 Page14 of 17

page 14 of 17

I. CONCLUSION AND DISPOSAL 36. Justice is not served by closing the door upon material public records merely because they surfaced after witnesses had stepped down, neither is it served by permitting a party to rebuild its case without limits. The just course lies between those extremes. The records sought to be introduced are sufficiently relevant, recently obtained, apparently credible and potentially influential. The Petitioner acted promptly, none of the Respondents oppose reopening, and any prejudice can be neutralised by strict limits and reciprocal procedural rights. 37. Accordingly, the Notice of Motion dated 11th June 2026 is allowed in the following terms: a. The Petitioner’s case is reopened for the limited purpose supplementary of adducing documentary and the oral evidence referred to in the Notice of Motion dated 11th June 2026 and the supporting affidavit sworn by Winnie Julu on the same date. b. The Petitioner shall file Supplementary List and RULING: ELCPET/E002/2023 Page15 of 17 and serve its Bundle of

page 15 of 17

Documents, Supplementary List of Witnesses and witness statements within fourteen (14) days of this Ruling. c. The Respondents shall be at liberty, within fourteen (14) days of service, to file and serve supplementary evidence strictly in response and to cross-examine any witness called by the Petitioner. d. Questions concerning the admissibility and evidential weight of the supplementary evidence are reserved for determination at the resumed hearing and in the final judgment. e. The request for consolidation is declined at this stage, without prejudice to appropriate case-management directions upon notice to all parties in the affected petitions. f. Costs of the Application shall be in the cause. g. The Petition shall be mentioned on 26 th October 2026 for compliance and further directions. Orders accordingly. Ruling dated, signed and delivered virtually via Microsoft Teams at Mombasa this 24th day of September 2026. RULING: ELCPET/E002/2023 Page16 of 17

page 16 of 17

........................................................ B. A. AKELLO, OGW JUDGE In the presence of: Gillian Court Assistant Ms. Julu for the Petitioner Mr. Waweru for the 1st Respondent N/A for the Respondent Mr. Waga for the 2nd –6th Respondents RULING: ELCPET/E002/2023 Page17 of 17

page 17 of 17