https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3982

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT KERUGOYA** **ELCLA NO. 052 OF 2024** **EVA HELLEN MICERE MUGERA ……………………………….. APPELLANT** **VERSUS** **BINGWA SACCO SOCIETY LIMITED ……………………….. RESPONDENT** **MUNICIPAL COUNCIL OF KERUGOYA/KUTUS …… INTERESTED PARTY** **JUDGMENT** **(Being an Appeal against the ruling of Hon. Martha Mutuku, CM, delivered on 3rd September 2024 in Kerugoya Civil Suit No. 40 of 2012)** 1. This appeal arises from the ruling of the **Chief Magistrate’s Court at Kerugoya, Hon. Martha Mutuku, CM**, as she then was, delivered on **3rd September 2024** in **Kerugoya CMCC No. 40 of 2012**. In the impugned ruling, the learned trial magistrate found that the 1st defendant’s re-arranged trial bundle was not properly on record and consequently expunged the same from the court record. The court further dismissed the 1st defendant’s application dated 28th May 2024 and ordered the defendant to bear the costs of both applications. The court additionally directed that the defence hearing proceed on a priority basis, fixed the defence hearing for 24th October 2024 and directed the plaintiff to serve the interested party with a hearing notice. 1. Aggrieved by the ruling and orders of the trial court of 3rd September 2024 the appellant lodged the present appeal premised on the following grounds: 2. That the learned magistrate erred in fact and in law in holding that the appellant did not file a replying affidavit to the application dated 14th May 2024 and failed to address her mind to the replying affidavit sworn on 28th May 2024*.* 3. That the learned magistrate erred in fact and in law in holding that the appellant’s application was an afterthought and in stating that the appellant had not attempted to explain why the documents should not be introduced at that stage, contrary to the averments contained in the affidavit evidence*.* 4. That the learned magistrate erred in fact and in law in holding that the respondent would suffer immense hardship if the appellant’s application was allowed whereas corresponding leave could have been granted to the plaintiff to recall witnesses or file additional evidence. 5. That the learned magistrate erred in fact and in law in holding that the re-arranged bundle was filed without leave and failed to appreciate that leave had been granted on 18th May 2023 for the defendant to put its documents in order*.* 6. That the learned magistrate erred in fact and in law in failing to appreciate that the appellant would suffer prejudice if the documents sought to be relied upon were locked out despite the same being crucial to the just determination of the dispute*.* 7. That the learned magistrate erred in fact and in law in punishing the appellant for inadvertent mistakes and anomalies which had been explained before the court. 8. That the learned magistrate erred in fact and in law in failing to appreciate that the court retained discretion to enlarge time and admit documents notwithstanding lapse of timelines. 9. That the learned magistrate erred in fact and in law in failing to exercise her discretion judiciously*.* 10. That the learned magistrate erred in fact and in law in allowing the plaintiff’s application dated 14th May 2024 and dismissing the appellant’s application dated 28th May 2024. 11. That the learned magistrate erred in fact and in law in rendering the impugned ruling dated 3rd September 2024. 12. The appellant therefore prays that the appeal be allowed, the ruling and orders of the learned trial magistrate delivered on 3rd September 2024 be set aside, and the same be substituted with orders allowing the appellant’s application dated 28th May 2024 together with costs of the appeal. ***Background*** 1. The dispute giving rise to the impugned ruling revolved around two competing applications concerning the propriety of the 1st defendant’s re-arranged trial bundle dated 22nd September 2023 and filed on 26th September 2023. The first application dated 14th May 2024, was filed by the plaintiff, seeking orders that the 1st defendant’s re-arranged trial bundle be struck out and/or expunged from the court record for being scandalous, frivolous, vexatious, malicious and an abuse of the court process. The application was supported by the affidavit of Hamba Caroline Advocate, sworn on 14th May 2024. The plaintiff’s position was that the suit had partly proceeded for hearing, with the plaintiff having called witnesses who testified while relying on the defendant’s earlier bundle of documents. According to the plaintiff, the court had on 18th May 2023 merely granted leave to the defendant to properly rename and arrange its bundle and not to introduce fresh documents after the closure of the plaintiff’s case. 1. The plaintiff further contended that whereas the bundles filed on 2nd July 2021 and 17th July 2023 substantially mirrored each other, the re-arranged bundle filed on 26th September 2023 introduced additional documents, including correspondence, approvals, receipts, NEMA documents and building approval documents that had not previously formed part of the annexed documents relied upon during trial. It was further contended that several documents listed in the earlier bundle had not even been annexed at the time the plaintiff’s witnesses testified and that the subsequent filing of the re-arranged bundle without leave was prejudicial and contrary to orderly trial procedure under **Order 11 of the Civil Procedure Rules.** 1. The application was opposed through the replying affidavit sworn by the 1st defendant on 28th May 2024. The 1st defendant dismissed the plaintiff’s complaints as unfounded and explained that the initial list of documents filed on 2nd July 2021 had inadvertently been mislabeled as the plaintiff’s list of documents, necessitating correction through the subsequent filing dated 17th July 2023. The 1st defendant maintained that the documents contained in the bundles filed on 17th July 2023 and 26th September 2023 were substantially similar save for three additional documents, namely, a receipt for **Kshs. 16,000/=** for plan approval for **Plot No. 55** dated 17th October 2014, a building plan approval form stamped by the Physical Planner on 9th September 2014 and an approved building plan with receipt dated 5th September 2014. The 1st defendant further contended that the rearrangement of the bundle had merely been intended to organize the documents according to the sequence of events for ease of production during trial and that no prejudice would be occasioned to the plaintiff since witnesses could be recalled if necessary. 1. Subsequently, the 1st defendant filed an application dated 28th May 2024 seeking orders that the re-arranged trial bundle filed on 26th September 2023 be deemed as properly on record and, in the alternative, leave be granted to file a supplementary list of documents to include the three documents relating to plan approval and building approvals. The application was supported by the affidavit of Lewis Muchuri Maina sworn on 28th May 2024. The 1st defendant maintained that the documents contained in the bundle filed on 17th July 2023 and the re-arranged bundle filed on 26th September 2023 were substantially the same save for the three additional documents. It was further contended that the rearrangement had merely been intended to organize the documents according to the events in issue and no useful purpose would be served by expunging the bundle from the record. The 1st defendant further maintained that the omission complained of was inadvertent, that amendments could be allowed at any stage of proceedings in the interest of justice and that no prejudice would be occasioned to the plaintiff since corresponding leave could be granted to recall witnesses if necessary. 1. The plaintiff opposed the application through grounds of opposition dated 30th May 2024 contending that the application was frivolous, vexatious, misconceived, mischievous and brought in bad faith. The plaintiff further contended that the application offended the provisions of **Order 11 of the Civil Procedure Rules** and amounted to an afterthought intended to defeat justice after commencement of the hearing and closure of the plaintiff’s case. 2. Upon considering the rival applications, the learned trial magistrate framed three issues for determination, namely: whether the defendant’s re-arranged trial bundle filed on 23rd September 2023 was properly on record, whether leave should be granted to the 1st defendant to file the re-arranged bundle and whether prejudice would be occasioned to the plaintiff if the orders sought by the defendant were granted. 3. On the first issue, the learned trial magistrate relied on the decision in the case of ***Nicholas Kiptoo Arap Korir Salat versus Independent Electoral and Boundaries Commission & 7 Others (2014) eKLR*** where the Supreme Court held that a document filed out of time without leave is a nullity and incapable of recognition by the court. Relying on the said authority, the learned magistrate held that the defendant did not have leave to file the re-arranged bundle and that the court could not deem such documents as properly filed and on record. 4. On whether leave ought to issue, the learned magistrate observed that upon being served with the plaintiff’s application, the defendant opted not to file a response but instead filed its own application seeking leave to file the bundle out of time. The court found that the defendant had failed to comply with the court’s earlier directions and had gone *“on a frolic of his own.”* The trial court further relied on the decision in the case of ***Tana Teachers Co-operative Savings and Credit Society Limited versus Adriano Muchiri (2018) eKLR,*** where the Court of Appeal held that a party cannot deliberately fail to comply with court directions and subsequently seek refuge under the overriding objective. 5. The learned magistrate consequently found that the defendant’s application was an afterthought, that litigation must come to an end and that no sufficient explanation had been tendered as to why the documents should be introduced at that stage of the proceedings. The court therefore declined to grant leave. 6. On the issue of prejudice, the learned trial magistrate held that the plaintiff stood to suffer immense prejudice if the defendant’s application was allowed and that granting the orders sought would defeat the overriding objective of the court process. 7. This appeal was canvassed through written submissions. The learned counsel for the appellant filed their submissions dated 16th May 2025, inter alia urging the court to allow the appeal and set aside the ruling of the trial court. Counsel submitted that the learned trial magistrate erred in finding that the appellant had not filed any response to the respondent’s application dated 14th May 2024 whereas the record clearly contained a replying affidavit sworn on 28th May 2024. Counsel submitted that the replying affidavit addressed the concerns raised by the respondent and explained the circumstances surrounding the filing of the re-arranged bundle. It was argued that failure by the learned magistrate to consider the said affidavit amounted to failure to consider relevant material placed before the court and consequently led to an erroneous exercise of discretion. 1. Counsel further submitted that the learned trial magistrate failed to properly appreciate the nature and purpose of the re-arranged bundle. According to the appellant, the defendant had initially filed a list of documents on 2nd July 2021, which was subsequently corrected through the filing of another list dated 9th June 2023 and filed on 17th July 2023 after the court granted leave to the defendant to *“put its house in order.”* It was submitted that the re-arranged bundle merely organized the documents according to the sequence of events for ease of production during trial. 1. The appellant submitted that the respondent mischaracterized the re-arranged bundle as introducing entirely new evidence, whereas most of the impugned documents had already formed part of the earlier bundles, though differently arranged, numbered or described. Counsel referred the court to several documents appearing in both bundles and submitted that the only documents not previously contained in the earlier list were the three documents relating to plan approvals, namely, the receipt for **Kshs.16,000/=** for plan approval, the building plan approval form and the approved building plan with receipt. 1. Counsel submitted that the appellant had openly disclosed the existence of the three additional documents and expressly sought leave of the court to rely on them through the application dated 28th May 2024. It was argued that there had been no concealment, bad faith or intention to ambush the respondent and that the omission complained of was merely inadvertent. The appellant further faulted the learned trial magistrate for relying on the decision in the case of ***Nicholas Kiptoo Arap Korir Salat versus Independent Electoral and Boundaries Commission & 7 Others (2014) eKLR*** and submitted that the authority related to the institution of an appeal outside the prescribed timelines without leave and was distinguishable from the present dispute, which concerned filing and regularization of documents during trial proceedings. 1. Counsel additionally submitted that the learned trial magistrate adopted an unduly rigid approach to procedural compliance at the expense of substantive justice and failed to properly exercise judicial discretion. Reliance was placed on **Article 159(2)(d) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act** and other authorities emphasizing that procedural lapses ought not defeat substantive adjudication where no irremediable prejudice is occasioned. It was further submitted that any prejudice likely to be suffered by the respondent could adequately have been cured through the recall of witnesses or the grant of corresponding leave to file additional evidence. Counsel maintained that the impugned documents were crucial to the just determination of the dispute and that their exclusion would occasion greater prejudice to the appellant. 1. The learned counsel for the respondent filed written submissions dated 22nd July 2025 inter alia urging the court to uphold the ruling of the learned trial magistrate. Counsel submitted that the learned trial magistrate properly exercised her discretion in expunging the re-arranged bundle and declining leave to admit additional documents after closure of the plaintiff’s case. It was submitted that the record clearly demonstrated that the plaintiff had already testified and closed its case before the defendant filed the re-arranged bundle on 26th September 2023. Counsel argued that the appellant sought to improperly introduce additional evidence after hearing the plaintiff’s case and after the plaintiff’s witnesses had testified relying on the earlier bundles of documents. 1. The respondent further submitted that the leave granted by the trial court on 18th May 2023 merely allowed the defendant to properly rename and arrange its documents and did not authorize introduction of fresh evidence outside the framework of **Order 11 of the Civil Procedure Rules**. Counsel maintained that the re-arranged bundle was therefore filed without leave and in contravention of the court’s directions. Counsel further submitted that the appellant expressly admitted that the re-arranged bundle introduced three additional documents relating to building approvals and plan approvals. According to the respondent, those documents had never been disclosed prior to closure of the plaintiff’s case and their introduction at that stage would occasion serious prejudice to the respondent and amount to trial by ambush. 1. It was further submitted that litigation must come to an end and that parties are bound by procedural rules and court directions intended to ensure orderly and fair conduct of proceedings. Reliance was placed on the decisions in ***Nicholas Kiptoo Arap Korir Salat versus Independent Electoral and Boundaries Commission & 7 Others* (2014) eKLR and *Tana Teachers Co-operative Savings and Credit Society Limited versus Adriano Muchiri* (2018) eKLR** for the proposition that documents filed without leave and in disregard of court directions cannot be sanitized through the invocation of the overriding objective or **Article 159 of the Constitution**. 2. The respondent further submitted that the appellant had not offered sufficient explanation as to why the additional documents were not filed earlier, despite having had ample opportunity before commencement and closure of the plaintiff’s case. Counsel argued that the application dated 28th May 2024 was properly found to be an afterthought intended to fill gaps in the defence case after the respondent had already closed its case. The respondent therefore urged the court to find that the learned trial magistrate correctly appreciated the applicable principles of law and properly exercised her discretion in expunging the re-arranged bundle and dismissing the appellant’s application. 3. The issues arising in this appeal for the court’s determinations are as follows: 1. *Whether the learned trial magistrate exercised her discretion judiciously in expunging the appellant’s re-arranged bundle and declining leave to regularize or introduce the impugned documents.* 2. *Whether the learned trial magistrate properly exercised her discretion in declining leave to the appellant to rely on the impugned documents and in dismissing the application dated 28th May 2024.* 3. *Who pays the costs?* 4. The court has considered the grounds on the memorandum of appeal, record of appeal, submissions by the parties’ learned counsel, superior court decisions relied upon, and come to the following findings: 1. As this is a first appeal, the duty of this Court is to re-evaluate the evidence afresh and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses. This principle was stated in ***Selle & Another versus Associated Motor Boat Co. Ltd & Others* [1968] EA 123**, where the Court of Appeal held: ***“This Court is not bound necessarily to accept the findings of fact by the court below. An appeal to this Court is by way of retrial… this Court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”*** * 1. The dispute in this appeal is therefore not so much about the substantive merits of the documents themselves, but about the proper balance between procedural orderliness and substantive justice within the conduct of trial proceedings. In my view, the cleanest approach to resolving this dispute is to collapse the numerous grounds advanced in the memorandum of appeal into two broad issues, as set out above, due to their substantial overlap. 2. The principles upon which an appellate court may interfere with the exercise of judicial discretion are now well settled. An appellate court will not lightly interfere with such discretion unless it is demonstrated that the trial court misdirected itself in law, considered irrelevant matters, failed to consider relevant matters, acted on wrong principles, or arrived at a plainly wrong conclusion. The dispute before the trial court arose from the filing by the appellant of a re-arranged trial bundle dated 22nd September 2023 and filed on 26th September 2023 after the respondent had already closed its case. The respondent’s complaint was that the appellant had filed the bundle without leave and had improperly introduced additional documents after closure of the plaintiff’s case, contrary to the dictates of orderly trial procedure and the provisions of **Order 11 of the Civil Procedure Rules.** 3. The appellant, on the other hand, maintained that the re-arranged bundle substantially contained documents that had already formed part of the earlier disclosed bundles and that the rearrangement merely organized the documents according to the sequence of events in issue for ease of production during trial. The appellant, however, acknowledged that the bundle introduced three additional documents relating to plan approvals and building approvals in respect of which leave had expressly been sought through the application dated 28 May 2024. 4. The respondent nevertheless maintained that the appellant had introduced not merely three documents, but several additional documents which had neither formed part of the earlier disclosed bundles nor been annexed at the time the respondent’s witnesses testified. Indeed, the respondent specifically identified various documents relating to correspondence, approvals, receipts, and planning documents, which, according to the respondent, appeared for the first time in the re-arranged bundle filed on 26th September 2023. 5. This court has carefully considered the rival positions. It is evident that there existed a genuine dispute between the parties as to whether the impugned bundle merely reorganized previously disclosed documents or whether it substantially introduced fresh evidence after closure of the respondent’s case. However, this court notes that the learned trial magistrate did not undertake a detailed interrogation of the specific documents alleged to have been newly introduced. Instead, the court proceeded on the broader premise that the re-arranged bundle as a whole had been filed without leave and was therefore improperly on record. 6. Certainly, this court agrees with the learned trial magistrate that parties are bound by court directions and that orderly conduct of litigation is fundamental to fair administration of justice. The provisions of **Order 11 of the Civil Procedure Rules** are intended to ensure full disclosure of evidence before trial so as to avoid trial by ambush and to enable parties to adequately prepare and present their respective cases. Equally, where a court grants specific leave concerning the filing of documents, parties are obligated to comply faithfully with those directions. 7. In the present case, the leave granted by the trial court on 18th May 2023 cannot reasonably be construed as a blanket authorization to introduce fresh evidence after the closure of the respondent’s case. To that extent, the learned trial magistrate cannot be faulted for finding that the re-arranged bundle, insofar as it introduced additional documents, had been filed without prior leave of the court. However, the inquiry before the trial court ought not to have ended there. 8. Once the appellant candidly acknowledged the introduction of additional documents and simultaneously moved the court seeking leave to rely on them, the real question became whether the circumstances of the case justified the exercise of discretion in favour of admission of the documents upon terms capable of neutralizing any prejudice likely to be suffered by the respondent. In the view of this court, the learned trial magistrate fell into error in the manner in which that discretion was exercised. 9. First, the learned trial magistrate proceeded on the premise that the appellant had not filed any response to the respondent’s application dated 14th May 2024. The record, however, clearly reveals the existence of the replying affidavit sworn on 28th May 2024, in which the appellant explained the circumstances surrounding the filing of the re-arranged bundle, acknowledged the existence of the additional documents, and addressed the issue of prejudice by indicating willingness for the recall of witnesses if necessary. That affidavit formed part of the material properly before the court and ought to have been considered in determining the competing applications. Failure to consider relevant material placed before the court inevitably affected the exercise of discretion. 10. Secondly, the learned trial magistrate appears to have approached the matter as though the entire re-arranged bundle constituted a wholly fresh and previously undisclosed evidence that was liable to outright rejection. Yet from the material placed before the court, it is evident that the dispute was more nuanced. The appellant consistently maintained that several of the impugned documents had previously formed part of the earlier disclosed bundles, though differently numbered, arranged, or described. The respondent equally maintained that several documents appearing in the re-arranged bundle had not previously been annexed or disclosed. 11. Whether the impugned bundle introduced three additional documents or several more, the critical consideration remained whether the resultant prejudice was incapable of cure, and whether outright expungement of the entire bundle constituted a proportionate response in the circumstances of the case. More importantly, the stage at which the matter stood before the subordinate court must be considered carefully. 12. At the time of the impugned ruling, the respondent had closed its case, but the defence hearing had not commenced. No defence witness had testified. The practical effect of expunging the entire re-arranged bundle and declining leave altogether was to substantially cripple the appellant’s defence before commencement of the defence hearing. Whereas courts must guard against procedural abuse and ambush, they must equally avoid driving parties away from the seat of justice through rigid application of procedural rules where the prejudice complained of is capable of being remedied without occasioning irreparable injustice. 13. The respondent undoubtedly stood to suffer inconvenience from the late introduction of additional documents after the closure of its case. However, this court is not persuaded that such prejudice was incapable of cure. The appellant had expressly indicated willingness for the recall of witnesses or the grant of corresponding leave to the respondent. The trial court retained ample discretion to fashion appropriate case management directions capable of neutralizing any disadvantage likely to be suffered by the respondent while at the same time preserving the appellant’s right to fully present its defence. 14. The learned trial magistrate relied heavily on the decision in the case of ***Nicholas Kiptoo Arap Korir Salat versus Independent Electoral and Boundaries Commission & 7 Others* (2014) eKLR** in holding that the court could not sanitize a document filed without leave. While the principle that parties must comply with procedural timelines and obtain leave where necessary is undoubtedly sound, the factual context in the cited authority was materially distinguishable from the present matter. The Supreme Court in the said decision was dealing with the institution of an appeal outside mandatory statutory timelines without leave. In the present case, the court was confronted not with the institution of a fresh cause outside jurisdictional timelines, but with the filing and regularization of documentary evidence within ongoing proceedings where the court retained broad discretionary powers to regulate its process and admit additional documents where justice so demanded. 15. The court must always strike a balance between two equally important principles, namely, the need for orderly and efficient conduct of litigation on one hand, and the need to determine disputes substantively on their merits on the other hand. In the present case, this court is persuaded that the learned trial magistrate placed disproportionate emphasis on procedural default without sufficiently considering whether the resultant prejudice to the appellant outweighed the inconvenience likely to be occasioned to the respondent. Ultimately, this court is not persuaded that the interests of justice were best served by wholly shutting out the appellant’s documentary evidence before commencement of the defence hearing without considering less restrictive case management measures available to the court, including limitation of reliance to specific documents, grant of leave upon terms, recall of witnesses, or grant of corresponding leave to the respondent to file further evidence. Accordingly, this court finds merit in the appeal to the extent that the learned trial magistrate failed to exercise discretion judiciously in expunging the appellant’s entire re-arranged bundle and in dismissing the application dated 28th May 2024, without considering some of the documents in the said bundle had been filed and served within time**.** While the three additional documents namely, receipt for **Kshs.16,000/=** for plan approval for **Plot No. 55** dated 17th October 2014, a building plan approval form stamped by the Physical Planner on 9th September 2014, and an approved building plan with receipt dated 5th September 2014, were undoubtedly filed without leave of the court, and admitting them at that stage the trial court would most probably have prejudiced the respondent/plaintiff as he had closedhis case, this court finds no justifiable cause why the documents contained in the bundle filed on 17th July 2023, that were included in the re-arranged bundle filed on 26th September 2023, could not have been taken as properly filed. The court further finds no reasonable explanation has been tendered why the three additional documents detailed above had not been filed earlier with the others, and as they had filed without leave, they should be expunged from the bundle and record. * 1. Under **Section 27 of the Civil Procedure Act Chapter 21 of Laws of Kenya** cost follow the events unless where the court orders otherwise on good reasons. In the instant application, the court is of the view that justice will be served better by an order that each party to bear their own costs. 1. Flowing from the foregoing determinations, the court finds and orders as follows: 1. **That the appeal has merit and is hereby allowed.** 2. **That the ruling and orders of the trial court of 3rd September 2024 are hereby set aside, and in its place substituted with an order that:** 1. **The plaintiff’s/respondent’s application dated 14th May 2024 is allowed limited to striking out the three additional documents detailed above from the 1st defendant’s/appellant’s re-arranged bundle of document filed on 26th September 2023.** 2. **That the 1st defendant’s/appellant’s application dated 28th May 2024 is allowed limited to taking as properly filed the documents contained in the bundle filed on 17TH July 2023 that are in the said re-arranged bundle filed on 26TH September 2023***.* 3. **That for avoidance of doubt, the three new or additional documents, namely, receipt for Kshs. 16,000/= for plan approval for Plot No. 55 dated 17th October 2014, a building plan approval form stamped by the Physical Planner on 9th September 2014 and an approved building plan with receipt dated 5th September 2014, that were filled without leave are hereby expunged from the trial court record.** 3. **Each party shall bear his own costs in the appeal.** Orders accordingly. **DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 1ST DAY OF JULY 2026** **S. M. Kibunja** **ELC JUDGE** **In the presence of:** Appellant – M/s Ann Thungu Respondent – Mr. Magee for 1st Respondent Ms. Wambua for 2nd Respondent Kinyua/Charles - Court Assistant **S. M. Kibunja** **ELC JUDGE**