https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4634

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ELDORET** ***(Coram: C.N. Ondieki, J.)*** **ELCLC NUMBER E087 OF 2025** **BETWEEN** **JOYCE CHEMUTAI TUNOI……………………………….……………….PLAINTIFF** **AND** **CHARLES K CHERONO……….…………………..…………………….DEFENDANT** **RULING** 1. I have applied my judicial mind to the trial objection raised by Ms. Chumba, learned Counsel representing the Defendant, strenuously opposing production as the Plaintiff’s Exhibits 2 and 4 respectively, the Sale Agreement dated 10th September 2019 on grounds that it is a photocopy, and the photographs of the suit property on grounds that they are unaccompanied with a certificate contemplated by the Evidence Act. 2. I have further addressed myself to the response prosecuted by Ms. Lagat, learned Counsel representing the Plaintiff. 3. Foremost, it is unfortunate that intention to raise the trial objections was not intimated during the Case Management Conference (hereinafter “CMC”), contrary to the purpose of Order 11 of the Civil Procedure Rules (hereinafter “CPR”) which was enacted to condemn to history trials by a combination of ambush and technicalities, contrary further to the overriding objective of the Civil Procedure Act (hereinafter “CPA”) expressed through section 1A thereof and Article 159(2)(d) of the Constitution which *inter alia* commands trial which elevates substantive justice. 4. Going forward and in accord with the said provisions of law, it is directed that intention to raise such trial objections should be raised at the CMC, even without being prompted by the presiding Judge, for appropriate directions in service of substantive justice. 5. Perhaps it is instructive to underline now that our Evidence Act originated in India and the provisions of the statutes in both jurisdictions (The Indian Evidence Act, Act No. 1 of 1872; and The Evidence Act, Cap 80 of the Laws of Kenya) are *para materia* the same to this day. It follows that the interpretation of the Act by Indian Courts and especially the apex Court thereof, are profoundly persuasive. In this connection, my judicial persuasion draws from the rendition of the Supreme Court of India **(K.T. Thomas, R.P. Sethi & B.N. Agarwal, JJ)** in **Bipin Shantilal Panchal vs. State of Gujarat and Anr on 22 February, 2001, AIR 2001 Supreme Court 1158** (hereinafter ***“the Bipin case”***),where, having noted the unreasonable delay which necessarily comes with stay of proceedings to await determination of trial objections, especially when raised sporadically in manifold times, the Supreme Court of India expressed a substantive-justice-leaning judicial opinion that it is an archaic practice that during hearing of witnesses, whenever any trial objection is raised regarding admissibility of any material in evidence, the Court feels obligated to determine the objection instantly by staying the hearing proceedings. The Court rendered itself as follows and for sufficient contextualization, I wish to quote it *in extenso*: **“This is yet another opportunity to inform the trial Courts that despite the procedural trammels and vocational constraints we have reached a stage when no effort shall be spared to speed up trials in the criminal Courts. It causes anguish to us that in spite of the exhortations made by this Court and a few High Courts, time and again, some of the trial Courts exhibit stark insensitivity to the need for swift action, even in cases where the Accused are languishing in prisons for long years as under-trials only on account of the slackness, if not inertia, in accelerating the process during trial stage. We shall narrate, in a brief manner, as to what happened thus far in the present case though this seems to be one of the rare cases in which an under-trial prisoner has been facing a record time for reaching culmination of the trial proceedings… For so many reasons the trial Court could not proceed fast, for which the respondent has also contributed substantially… But the initial alacrity shown by the trial judge did not last long as the swiftness of the trial was bridled on account of trumpery reasons. The defence counsel questioned the admissibility of certain documents and raised objections with regard to the same. Though the trial Court disallowed the objections as per an order passed on 24.7.2000 (presumably after hearing both sides at length) the trial judge adopted a very unwholesome procedure by stopping the trial for a lengthy period, just to enable the defence to take up that order before the High Court. Even though the prosecution brought witnesses to be examined on 8.8.2000, the trial judge hesitated to examine them, and extended the stay granted by himself and did not choose to take the evidence of those witnesses on the said date. However, the defence failed to challenge the said order and hence the trial proceedings were resuscitated on 16.8.2000. On that day the defence raised another objection regarding admissibility of another document. The trial judge heard elaborate arguments thereon and upheld the objection and consequently refused to admit that particular document. What the prosecution did at that stage was to proceed to the High Court against the said order and in the wake of that proceeding respondent filed an application on 9.11.2000, for enlarging him on bail on the strength of the order passed by this Court on 31.3.2000 (extracted above). We are compelled to say that the trial judge should have shown more sensitivity by adopting all measures to accelerate the trial procedure in order to reach its finish within the time frame indicated by this Court in the order dated 31.3.2000 since he knew very well that under his orders an Accused is continuing in jail as an under-trial for a record period of more than seven years. Now, we feel that the Additional Judge, whether the present incumbent or his predecessor, was not serious in complying with the directions issued by this Court, though the parties in the case have also contributed their share in bypassing the said direction. As pointed out earlier, on different occasions the trial judge has chosen to decide questions of admissibility of documents or other items of evidence, as and when objections thereto were raised and then detailed orders were passed either upholding or overruling such objections. The worse part is that after passing the orders the trial Court waited for days and weeks for the concerned parties to go before the higher Courts for the purpose of challenging such interlocutory orders. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional Court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate Court would be deprived of the benefit of that evidence, because that was not put on record by the trial Court. In such a situation the higher Court may have to send the case back to the trial Court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings.**” {Emphasis supplied} 6. It will be remiss of this Court if it fails to underline that this rendition of the Supreme Court of India, is consistent with our overriding objective of the CPA. See section 1A of the CPA and section 3 of the Environment and Land Court Act. 7. In the end, in ***the Bipin case,*** the Supreme Court of India thus laid principles to guide lower Courts that in lieu of staying a hearing to determine a trial objection, a Court should take note of the objection and allow production of the document as an exhibit and the trial objection deferred to determination in the final stage, in the following words: **“When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.) The above procedure, if followed, will have two advantages. First is that the time in the trial Court, during evidence taking stage, would not be wasted on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior Court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the trial Court, can determine the correctness of the view taken by the trial Court regarding that objection, without bothering to remit the case to the trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.”** {Emphasis supplied} 8. I find this rendition highly persuasive and I hereby adopt it *mutatis mutandis.* It follows that although highly desirable by the Objector to do so, no prejudice will occasion to the Objector if a trial objection is not determined instantaneously, and instead subsumed into the next final decision of the Court. 9. My judicial view is underpinned by at least eight legal justifications. 10. **First,** the tenor of production of a document in proceedings is in no way synonymous with foreclosure of the challenge of admissibility and/or relevancy and in no way does it signify acceptance of the document for purposes of proof or disproof of the facts in issue. It is now a settled legal principle that even if the contested documents are produced as exhibits, the law reserves a right to the Objector to challenge their admissibility, relevancy and/or propensity even at the submission level since such an objection is deemed a question of law. In no way does mere production of a document as an exhibit in evidence signify that the document has passed the admissibility and/or relevancy and/or propensity acid test which all forms of evidence must surmount. Put differently, production of a document as an exhibit is no way equivalent to foreclosure of or shield from any challenge on account of admissibility and/or relevancy and/or propensity thereof. Production as an exhibit is not the ultimate stage. The ultimate stage falls in the period the Court finally retires to render a determination on the facts in issue, and at such a stage, the Court determines whether the document has surmounted the said acid test. It follows that even after production of a document as an exhibit, such a challenge survives production and remains a live issue throughout the proceedings, until the Court renders itself finally. See **Kenneth Nyaga Mwige vs. Austin Kiguta & 2 others [2015] eKLR** (hereinafter “the Mwige case”). 11. **Second,** theoverriding objective (otherwise popularly known as the oxygen principle) of the CPA and CPR; the Environment and Land Court Act (hereinafter “ELC Act”); The Practice Directions on Standardization of Practice and Procedures in the Environment and Land Court, 2025 (hereinafter “PDELC”); is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the said Acts. See section 1A(1) of the CPA; section 3(1) of the ELC Act; and Practice Direction 4 of the PDELC. The framework for giving effect to the oxygen principle resides in the double-edged and symmetrical obligations reposed in both the Court and parties. On one hand, parties and their advocates, if any, are obligated to assist the Court to further the said oxygen principle by *inter alia,* participating in the processes of the Court and complying with the directions and orders of the Court. See sections 1A(3) of the CPA and 3(3) of the ELC Act. On the other hand, in striking a delicate balance towards attainment of the said oxygen principle, the Court is obligated to progress all matters committed to it for resolution for the purpose of attaining the just determination; efficient disposal; efficient use of the available judicial and administrative resources; the timely disposal thereof to keep in check inter alia the cost element of suits; leveraging suitable technology; and serving the ends of justice in this regard. See section 1B of the CPA; and Practice Direction 23(m) of the PDELC. Accordingly, whenever a Court is construing any of the provisions of the CPA; ELC Act and Rules under both Acts, the Court is enjoined to always train its eye on giving effect to the said oxygen principle. See section 1A (2) of the CPA; section 3(2) of the ELC Act; and Practice Directions 4 & 23(m) of the PDELC. In giving effect to the oxygen principle, one of the principal obligations reposed upon a Court is to hold a Case Management Conference (hereinafter “CMC”) and arising therefrom, issue directions and orders vide a Case Management Order (hereinafter “CMO”). **The purpose of a CMC, therefore, is to give effect to the oxygen principle.** This purpose is elucidated by Order 11, Rule 3(a) - (c) of the CPR as follows: **“(1) The purpose of a case management conference shall be to — (a) promote the expeditious disposal of cases; (b) afford the parties an opportunity to use alternative dispute resolution mechanisms to determine the case; (c) afford the parties an opportunity to settle the case.”** Upon conducting a CMC, a CMO is issued pursuant to Order 11, Rules 3(5) & 4 of the Civil Procedure Rules (hereinafter “the CPR”). **The purpose of a CMO is to give Directions and Orders of the Court in giving effect to the oxygen principle.** 12. **Third,** this approach commends itself to one of the key principles which govern exercise of judicial authority enshrined in Article 159(2)(b) of the Constitution which commands that justice shall not be delayed. Ninth, it will be noted that this judicial view is profoundly facilitative towards striking a delicate balance between the ever-dicey inderrogable right of a party to challenge evidence one hand, *viz aviz* the obligation fastened to this Court by Article 159(2)(b) of the Constitution, to exercise my judicial authority in a manner which does not offend the principle that justice shall not be delayed, by adopting a trajectory which fundamentally expedites trial. 13. **Fourth,** whereas a challenge of admissibility, being a pure question of law can possibly be determined even before this Court finally renders itself on the matter, a challenge of relevancy for instance, being a question of fact, may not be appropriately determined before the Court reaches the stage where it can finally render itself. In this regard, my judicial rendition is shaped and fortified by the learned authors of ***Sarkar on Evidence,*** namely ***Prabhas C. Sarkar***and***Sudipto Sarkar*** (who authored a commentary of The Indian Evidence Act, Act No. 1 of 1872, which came into force on 15th March 872 and which is *para materia,* similar to our Evidence Act, Cap 80 of the Laws of Kenya), who have expressed a cautionary principle that if questions of relevancy are determined before the Court finally renders itself, it may be tantamount to putting the cart before the horse. The learned authors have stated as follows in the ***13th Edition, at page 1321:*** **“Questions of relevancy of evidence cannot be decided before issue have been framed, nor can issues be framed merely for purpose of determining in advance what evidence may or will have to be given or allowed. What evidence will or will not be allowed is not to be anticipated or decided under cover of framing issues, but is to be determined in accordance with provisions of section 136, if and when evidence is offered.**” {Emphasis supplied} 14. **Fifth,** since this Court adopts a judicial view that as far as practicable, considering the legal effect of production of a document, and since this Court has a final determinative view at the appropriate ultimate stage - the final stage where the question whether the document can be relied upon to prove this fact or the other – as far as practicable, this Court is of the persuasion that it should refrain itself from dictating which document a party should produce or not, and the witness to produce the document. However, this stance translates that a weighty responsibility lies on the shoulders of the party proposing to produce the contested document to cross-check its consistency with the law before venturing into that route. It follows that the principal focus of the Objector, therefore, should not be whether a document is prevented from production, but whether it surmounts the admissibility and/or relevancy test finally. 15. **Sixth,** in considering such trial objections, this Court is of the view that it will be imperative and judicious to strike a delicate balance of risks, by opting to take the path of lower risk of injustice. In this regard, considering the legal implication of production of a document in evidence, the lower risk of injustice lies in allowing the production and deferring and subsuming the determination of the trial objection into the final decision of the Court, when the Court shall ultimately consider the totality of the evidence and the law underpinning the evidence. 16. **Seventh,** since there is a safeguard inbuilt in section 175 of the Evidence Act against improper admission or rejection of evidence, and granted that improper admission or rejection of evidence shall not of and by itself be ground for a new trial or reversal of any decision, then it would be judicious to allow production and determine the trial objection in the final decision of the Court. See section 175 of the Evidence Act. 17. **Eighth,** the fact that a Court overrules a trial objection is not tantamount to *fait accompli.* In such event, the Objector reserves the right to a continuing or running objection, which essentially means that the Objector reserves the challenge for determination by the appellate Court - if the Accused is convicted or acquitted- whichever is applicable, depending on the party which raised the objection. The said **Black’s Law Dictionary (9th ed., 2009),** at page 1178, defines a **‘continuing objection’** as follows: **“A single objection to all the questions in a given line of questioning. A judge may allow a lawyer to make a continuing objection when the judge has overruled an objection applicable to many questions, and the lawyer wants to preserve the objection for the appellate record. — Also termed running objection.”** This view is cemented by the persuasive holding of the High Court in both**Njuguna Mwangi & Samuel Irungu Mwangi vs. Republic (Anti-Corruption and Economic Crimes Case 10 of 2018) [2018] KEHC 3970 (KLR) (Anti-Corruption and Economic Crimes) (27 September 2018) (Ruling),** paragraphs 14-18, per **J. Onyiego, J.** and **Boniface Gubimilu vs. Republic (Criminal Revision 2 of 2018) [2020] KEHC 913 (KLR) (18 December 2020) (Ruling),** paragraphs 6-9,per **W. Musyoka, J.** 18. On basis of the foregoing eight legal justifications, this Court would and hereby allows production of the contested documents as Exhibits and subsume determination of the said trial objection into the Judgment to be rendered by this Court. 19. For purposes of this trial, therefore, this Court directs that unless the trial objection falls under the cluster which can be determined instantly - for being either (i) plain and obvious; and/or (ii) of such a nature that does not demand a protracted interrogation of evidential issues raised; and/or (iii) of such a nature which necessarily require a determination instantly - it will suffice if the Objector: 1. expressly calls the attention of the Court to the specific trial objection supported by such reasons as may be advanced by the Objector; and 2. cross-examines the opponent’s witness in regard to the subject trial objection; and 3. although this Court will permit production of the contested document if there is no concession, determination thereof shall be deferred and subsumed into the Judgment to be rendered by this Court. 20. Orders accordingly. **Virtually Delivered, Signed and Dated in ELC Eldoret this 21st day of July 2026**  **…………….…………** **C.N. Ondieki** **Judge** **In the presence of:** **Advocate for the Plaintiff: Ms. Lagat** **Advocate for the Defendant: Ms. Chumba** **Court Assistants: Ms. Chepkoech & Ms. Juma**