https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2916

Cysewski v County Government of Kilifi & another (Environment and Land Case E040 of 2021) [2026] KEELC 2916 (KLR) (13 May 2026) (Ruling) Neutral citation: [2026] KEELC 2916 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Environment and Land Case E040 of 2021 FM Njoroge, J May 13, 2026 Between Anthony John Cysewski Plaintiff and County Government of Kilifi & another Defendant Ruling 1.In the Notice of Motion dated 2nd February 2024 the plaintiff/applicant seeks an order of leave to file supplementary evidence after the close of pre-trial direction on the basis that in the course of his negotiations with the defendants, he has obtained new evidence that was not in his possession as at the time of filing the case. The applicant states that the evidence discovered is crucial for the fair and just determination of the present suit. 2.The application is supported by the affidavit evidence of the plaintiff contained in an affidavit of the same date as the application, which outlines the details of what has been going on behind the scenes. At paragraph 5 of his affidavit, he mentions the documents that form part of the new evidence which he desires to have brought into the matter. These are:a.A survey report of plot number LR 12585 dated 2nd October 2023 by the Sub-County Surveyor;b.An invoice dated 2nd August 2023;c.A letter dated 9th October 2023 to the Kilifi County Commissioner;d.A letter dated 19th January 2024 to the Chief Officer Lands Energy and Physical Planning Kilifi County Government;e.A letter dated 22nd January 2024 to Kenya National Highways Authority;f.Photographs showing closure of the illegal road passing through the suit property and construction of the alternative connection rule between the old Ferry Road to the Kilifi-Malindi highway, andg.Invoices for equipment hired and materials purchased by the plaintiff to facilitate closure of the illegal road passing through the suit property and the construction of the alternative road. 3.He states that the new evidence is crucial as it touches on the question as to whether there is an approved public road on the suit property which is the crux of the present case. He thinks that the evidence will assist this court to come to a just and fair determination of this case. 4.The application is opposed by the 1st defendant through the replying affidavit of Rehema Mwabaya the 1st defendant's County Legal Counsel. She deposed that the application offends the provisions of Order 2 Rule 13 and Order 11 of the Civil Procedure Rules which mandate pleadings to close within 14 days upon service of the Reply or Defense to Counterclaim; that the pleadings in this matter closed in the year 2021 and the matter was certified ready for hearing; that such an application must supply evidence as to when the alleged supplementary evidence came into the possession of the applicant, and why it could not be filed earlier, and what efforts were made to obtain and file it before the close of the pre-trial directions. According to her no sufficient cause has been shown for the applicant’s application and apparent bid to reopen the proceedings. Apparently, she also thinks that the documents intended to be filed would not help the court since the court had directed that parties do engage in negotiations and the documents should have been produced at the negotiations stage instead of an application being made to reopen the proceedings. Analysis and Determination 5.I have considered the provisions of Order 2 Rule 13 of Civil Procedure Rules and Order 11 Civil Procedure Rules which the 1st defendant’s counsel refers to. However, it is the plaintiff making the present application; consequently, I think the pertinent provisions to examine are those in Order 3 Rule 2 and Order 11. 6.After perusing through Order 3 rule 2 and Order 11 of the Civil Procedure Rules this court has found there is nothing that bars it from allowing documents to be filed by parties even after the close of pleadings if in its discretion it deems that course of action necessary in the interests of justice. 7.It is the view of this court that such an allowance was left for the exercise of discretion of the court to avoid any possible injustice that might occur if the rules had been made so rigid that there was no room whatsoever to allow filing of documents which had not been within the knowledge or reach of a litigant before the close of pleadings or at the discovery stage. 8.In the case of Afikasa Real Estate Limited v Scorpio Enterprises Limited [2023] KEELC 22395 (KLR), the court stated as follows:“13.What this court is intent on emphasizing is that when such an application as the current one has been made in such circumstances as prevail now, the court being a court of justice must ask itself if it is proper to bar the applicant from filing the documents it desires to and whether the respondent may suffer any prejudice. One thing that this court must bear in mind is that this is the first formal application being made in that regard, and that the dispute appears to require a full and final determination on its merits. Secondly, only some delay may result, and that delay is compensable by way of condemning the applicant to costs, including those incurred in the present application.14.The court will turn away from procedural and other technicalities where it is still possible to grant the orders sought and arrive at substantive justice in the case, for that ultimate end is what the court was constituted for.” 9.I have examined the contents of the documents intended to be relied on by the applicant and I find that it is true they were not within his reach, and also that they contain material relevant to this case which may assist the court in the determination of the case. 10.I also find that no proper ground upon which to reject the application dated 2/2/2024 has been advanced by the defendants. The application has merit and I allow it as prayed. The applicant shall file and serve those documents within 7 days from today. The suit shall be mentioned on 8th June 2026 for issuance of directions as to hearing. DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 13TH MAY 2026. MWANGI NJOROGEJUDGE, ELC MALINDI.