https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5209

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MIGORI** **ELC (OS) CASE NO. 004 OF 2020** **ELISHA ODITI ODERO (suing on his behalf and as the legal administrator of the estate of JOSHUA ODERO OWITI (DECEASED)....................................................................APPLICANT** **VERSUS** **CONSOLATA ATIENO OTIENO (sued on her own behalf** **and as the legal Administrator of the estate OF** **REUBEN OTIENO OKOMBO alias OTIENO KOMBO......RESPONDENT** **RULING** **(On whether the Applicant should be granted leave to file the surveyor’s report dated 9th March 2026)** **The application** 1. The Applicant filed a Notice of Motion dated 17th March 2026 under a certificate of urgency. The application was anchored on Sections 1A, 1B and 3B of the Civil Procedure Act as well as Order 51 Rule 1 of the Civil Procedure Rules, 2010. He sought leave to file a List of Documents in support of his case. He also prayed that the said Documents be deemed duly filed upon payment of the requisite court fees. He prayed further for costs, as well as any other orders the court may deem fit to grant. 2. The application was supported by several grounds contained in the application itself as well as the Affidavit in support of the application. It was deponed by Elisha Onditi Odero, the Applicant. In a nutshell, the Applicant stated that he instituted a suit against the Respondent over suit parcel registration number Kamagambo/Kaluoch/92. The land was a parcel his family has occupied since the year 1977. However, at the time of filing the suit, he inadvertently failed to file surveyor’s report. He deemed the document as being very crucial for his case. He also stated that the document was relevant to his case since it directly related to the boundaries of the suit land hence it would go to the root of the case. He attributed the failure to attach the document to the List of Documents relating to the suit property to a mistake. 3. The Applicant asserted that it was in the interest of justice that he be allowed to file the Further List of Documents. He also stated that allowing his application would not prejudice the Respondent. Also, that the Respondent would have an opportunity to interrogate any issues arising from said surveyor’s report. 4. Lastly, the Applicant maintained that the application had been brought timeously and in good faith. Further, that all the parties to the suit had notice of the existence of the document, it being a public document. He annexed to his Affidavit is a surveyor’s report dated 9th March 2026. 5. The application was opposed by the Respondent who filed a Replying Affidavit sworn on 31st March 2026. The Respondent deponed that the surveyor’s report that the Applicant now wished to introduce was dated 9th March 2026 while the suit was filed in year 2020. She concluded that the report was unavailable at the time of filing the suit. Moreover, she maintained that the report was procured without any reference to her as the beneficial owner of the suit land. She further deponed that the court was never informed about the fact of procuring the report despite the Applicant’s counsel being actively engaged in the proceedings. He stated that the report was aimed at conferring undue advantage to the Applicant’s case. 6. The Respondent vehemently opposed the introduction of the surveyor’s report by deponing that there was no point determining the boundaries of the suit land since the Applicant’s case was one of adverse possession. She asserted that the power to determine boundary disputes was vested on Land Registrars. That the claim of adverse possession cannot be determined by a surveyor who does not have the factual history of the occupation of the suit property. She termed the application an afterthought aimed at conferring undue advantage to the Applicant. She beseeched the court not to entertain the application. 7. In addition to the foregoing, the Respondent raised the issue of delay. He deponed that a party who seeks to delay the court process should not benefit from his/her delay. He prayed that the application be dismissed with costs. **Submissions** 1. The court directed that parties file written submissions. The Respondent did not file her submissions. The Applicant filed his dated 5th May 2026. He raised two issues for determination, being: whether he should be granted leave to file the Further List of Documents, and whether he was entitled to the orders sought. 2. The Applicant submitted that the court’s power to grant leave to file further documents is discretionary, and it should be freely granted where the documents in question were relevant. Further, that in allowing their filing it should not prejudice the Respondent but rather ensure that the interests of justice were met. He submitted that the document he intended to file would aid in the just determination of his case. 3. He relied on Article 159 (2) (d) of the Constitution of Kenya 2010, Section 18 of the Environment and Land Court Act as well as Sections 1A, 1B and 3A of the Civil Procedure Act. The court’s attention was also drawn to the Supreme Court decision of **Raila Odinga & 5 others v IEBC & 3 others, SCK Presidential Petitions Nos. 3, 4 and 5 of 2013 [2013] eKLR** where the Court set out the principles for taking additional evidence in election petitions. The Applicant equally submitted that in allowing the application would aid the court in determining the matter. He stated that he would not be able to substantiate his claim should the application not be disallowed. Such a denial as the Respondents’, he submitted, would be an impediment to his right to fair hearing as provided under Article 50 of the Constitution. He relied on **Richard Nchapi Leiyangu v IEBC & 2others, Civil Appeal no. 18 of 2013** (*sic*) to submit that courts should consider protecting the integrity of the court process from abuse and where it would occasion an injustice even where the courts have inherent power to dismiss suits. **Issues, Analysis and Determination** 1. I have considered the application, the response, the law, and submissions of the parties that made them. The main issue that arises for determination herein is whether the Applicant should be allowed to file a further List of Documents so as to incorporate the surveyor’s report which was not filed at the time of filing the suit. 2. The Applicant’s case herein is one of adverse possession. He stated that the surveyor’s report is critical in proving his case. The Respondent opposed the application. She stated that the report was not necessary to prove a claim of adverse possession. She maintained that the application was an afterthought since the Applicant sought to file a surveyor’s report dated 9th March 2026 while his suit was filed in 2020. 3. Whereas the Respondent deponed and argued that the surveyor’s report was not necessary to prove a claim of adverse possession, the court appreciates that a party seeking to prove such a claim must demonstrate that he /she possesses a definitely identified and defined portion of land registered in the name of the defendant since the court cannot grant the plaintiff’s prayers over a vague or uncertain area. In this sense, a surveyor’s report, though not explicitly mandated by statute, becomes a necessary part of the evidence that a plaintiff in an adverse possession claim can raise in support of the claim. 4. Whether or not a court exercises its discretion to grant leave to a party to file an additional evidence is a matter of several considerations. Courts have endeavored to restate them. Thus, in **Kombe Harrison Garama v Kenga Stanley Karisa & 3 others, Supreme Court Petition No. E020 OF 2023**, the court determined that: *‘‘11 (ii) This Court set the governing principles on allowing the filing of additional or new evidence in the case of* ***Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others,*** *SC Petition No. 7 & 9 of 2018 [2018]**eKLR as follows:* *“(a) the additional evidence must be directly relevant to the matter before the court and be in the interest of justice;* *(b) it must be such that, if given, it would influence or impact upon* *the result of the verdict, although it need not be decisive;* *(c) it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;* *(d) Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;* *(e) the evidence must be credible in the sense that it is capable of belief;* *(f) the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;* *(g) whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process;* *(h) where the additional evidence discloses a strong prima facie case of willful deception of the Court;* ***(i)*** *The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The Court must find the further evidence needful.* ***(j****) A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case.* *(k) The court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.”* 1. Also, in **Tibi & 6 others v Kenya Power and Lighting Company Limited (Civil Suit 104 of 2013) [2026] KEHC 4155 (KLR) (Civ) (19 March 2026) (Ruling)**,the court determined that: *14. Section 3A of the Civil Procedure Act (Kenya), which provides:* *“Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”* *15. In the case of Mahamud v Mohamad & 3 others (Petition 7 & 9 of 2018 (Consolidated)) [2018] KESC 62 (KLR) (28 September 2018) (Ruling), the Supreme Court of Kenya held that: -* *“We are convinced that disallowing the additional evidence would deny the Appellant a fair trial, which is a non-derogable right under our Constitution. In addition, we are satisfied that allowing the additional evidence is not prejudicial to any party and will be in the interests of justice as the evidence is necessary and crucial in making of a proper judicial finding as to whether the Appellant had the requisite academic credentials to vie for governor of Wajir County which are core issues before the Court.”* *16. In this case, the Applicant seeks to introduce further evidence arguing that it would support their case and clarify contested facts. The Respondent opposed it but did not prove any prejudice that it would suffer if the evidence were admitted.* *17. The Court is guided by the principle that litigation should, as far as possible, be determined on the basis of all relevant material placed before it, rather than on technical omissions.* 1. Earlier, this court in **African Inland Church of Kenya (Registered Trustees) v Enyang & 2 others (Environment & Land Case 46 of 2013) [2023] KEELC 17880 (KLR) (31 May 2023) (Ruling)** determined as follows concerning the filing of further evidence: *‘‘14. This Court has stated before in the case of* ***Mansukhalal Jesang Maru v Frank Wafula*** *[2021] eKLR that in order for a party to satisfy the Court as to be granted leave to file further or other documents after the filing of his case or defence to a case facing him or her, he has to climb to a higher standard that a balance of probabilities. Further, he/she has to show exceptional circumstances that made him or her not to file the documents together with the Plaint or Defence or Counterclaim. This is because the law is clear that documentary evidence has, at the time of filing the said pleadings, accompany them by copies. To file a pleading and bring up documents to support the pleading leaves the evidence in support to be suspect and a subject of imagination that it is manufactured.* *15. While the Court is not saying that late filing of documents cannot be permitted, it should remain abundantly clear that a party intending to file copies of documents after the filing of either the Plaint, Petition or Claim, or Defence and Counterclaim or Response to a Petition or other claim must convince the Court that the documents were not within his/her reach even after exercising all due diligence of a litigant and that they are neither manufactured for the case nor intrinsically engrained in the process of making up a case or a defence, which is an illegal process. In* ***Johana Kipkemei Too v Hellen Tum [2014] eKLR Justice Munyao*** *held as follows:* *“This however is not to say, that the court can never under any circumstances, permit a party to adduce additional evidence, that was not furnished to the other party as provided under the rules. The court as a shrine of justice, has a mandate to do justice to all parties and not to be too strictly bound by procedural technicalities. This flows from the provisions of Article 159 (2) (d) of the Constitution. Where such evidence can be adduced, without causing undue prejudice to the other party, the court ought to allow the application, so as to allow such party, the opportunity to present his case in full. The court may consider various factors including, but not restricted to, the earlier availability of the witness, the discovery of a new document…”* 1. The courts are obligated also to consider the circumstances of each case as was held in **TIBI & 6 OTHERS V KENYA POWER & LIGHTING COMPANY LIMITED** (*supra*). 2. Having considered the totality of the arguments of the parties vis-à-vis the test to be met, this court is persuaded that the Applicant has explained sufficiently why he ought to be granted leave to file a further of documents. This is because the surveyor’s report dated 9th March 2026 was not available at the time of filing the suit hence it could not have been included among the documents referred to in his List. The court notes that intended document is directly relevant to the issue at hand. This is because the Applicant has explained that he intends to use will to demonstrate with precision the size of the parcel of land he claims from the Respondent. As such, the report has a bearing on the final verdict of the case: it will remove vagueness and ambiguity in the Applicant’s claim. The credibility of the report has not been raised, save to state that the Respondent stated that neither the Respondent nor the court was informed of its procurement. This is an issue which the parties will have opportunity to test during the hearing. 3. As this Court held in Lwangu v Ndote (Environment & Land Case 79 of 2010) [2021] KEELC 2 (KLR) (10 November 2021) (Ruling), ***“Before a document was produced to show its contents, its existence or state/physical appearance (whichever was relevant to the proceedings before the court), it passed through three stages if it was the original or four if it was the secondary that was available.*** 1. ***First, the document was filed in court (according to the rules or legal requirements). If the party had not complied with the rules of filing the documents, he had to seek leave of the court to be permitted to file them out of time. The court had to be satisfied with the reasons why the party failed to comply with the rules. It was not a walk in the park for a party who failed to comply with the timelines set by law or an order of the court. Even article 159(2)(d) of the Constitution that parties often relied on did not come to the aid of all parties in all situations. Each case had to be treated on its own merits. Even so, the bar for convincing the court to exercise its discretion to permit documents to be filed out of time was higher than the usual standard.*** 2. ***Second, if the document was not the original, that was to say, it was secondary evidence, the party had to show the copy to the other parties and the court first. Then he would proceed to lay the basis for the production of the copy and not the original. That had to fall within the usual standard of satisfaction of the requirements of reliance on secondary evidence.*** 3. ***Third, once the court was satisfied that the party had laid a proper basis for producing secondary evidence of the document, it then permitted the party to lay further basis for the production of the document. That had to be in according with the rules of relevance and admissibility in the law of evidence.*** 4. ***Once, the above was complete, then the party had to prove the contents, state or physical appearance of the document.”*** 5. Persuaded by the above decision, I hold the view that for a party to be permitted to file documents way after filing of the Plaint/Claim/Petition, he has to show extremely rare reasons why he should be permitted. This is because Order 3 Rule 5 of the Civil Procedure Rules (which is similar to Order 7 Rule 5 regarding filing of defences) is clear as to which documents accompany the pleadings, and which ones can, with leave of the court be filed afterwards. Only witness statements may not be filed immediately with Claims or Defences but must be filed, with leave of the Court, at least fifteen days before the date of the Pretrial Conference. In the circumstances of the instant matter, whereas the pretrial Conference may have taken place some time back, the suit shall be starting *de novo* hereafter. Therefore, the Respondent will have opportunity to interrogate the report should he consider it appropriate for him to so do. The court finds that the document was not inadvertently omitted by the Plaintiff/Applicant because it was not in existence as at the time of filing of the Originating Summons. It only got to be available when it was made and the Court notified. 6. Thus, in the instant case, at this stage, and with reference to the **Lwangu v. Ndote** (*supra*) decision, the grant of the orders sought is only a basis for the applicant instituting the first step towards proof of the documents. I have observed above that whereas the suit was filed in 2020, the surveyor’s report is dated 9th March 2026. As noted, it was not available at the time of filing the suit. 7. On the question of proportionality of the prejudice to be suffered by the Respondent as with that to the applicant, this court has considered it, in the event the application is allowed. This is in relation to the stage of the suit. It suffices to state that the ex-parte proceedings relating to the suit were set aside at the instance of the Respondent. The court then ordered that the matter begins afresh. By the date of the instant application, none of the parties has testified. In my view, it is not prejudicial to permit the filing of the document, particularly when it was not be available even with due diligence to the Plaintiff at the time of filing suit. 8. The interests of justice demand that parties should be granted the right to a fair hearing, and that can only be, in the context of the instant application, and that the same should not be curtailed by procedural technicalities, more so where such technicalities can be cured by availing the opposing party to interrogate the additional evidence being adduced. 9. The upshot of the foregoing is that the Applicant’s application is allowed in terms of prayers 2 and 3 of thereof. The Respondents shall be paid by the Applicant throw away costs of Kshs. 15,000/= before the next hearing date. The suit shall be heard further on 28th October, 2026. The Hearing Notice is to issue in fourteen days and be served physically. 10. Orders accordingly **Ruling Dated, Signed and Delivered Virtually Via The Teams Platform This 15th July 2026.** **HON. DR. IUR NYAGAKA,** **JUDGE.** **In the presence of,** D. Otieno for the Respondent Owino for the Applicant(absent) but D. Otieno Advocate using his gadget hence to inform him