https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3939

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI ELC L CIVIL CASE NO. E289 OF 2024 MALO MALO BBQ SWAHILI CUISINE LIMITED .…… PLAINTIFF VERSUS CAPTAIN REAL ESTATE COMPANY LIMITED .…… DEFENDANT RULING 1. What is before the Court for determination is the Plaintiff’s Notice of Motion dated 19th January 2026 in which it seeks the following Orders: a) Spent. b) The Applicant be granted leave to file and serve additional evidence which includes audio evidence, discovered after the close of pleadings and after filing the initial bundle. c) Spent. ELC L CIVIL CASE NO. E289 OF 2024 Ruling Page 1 of 13 d) Costs of this application be in the cause. 2. The application is premised on grounds on its face and on the supporting affidavit sworn by the Plaintiff’s director, one Sophia Athman Abubakakar. She avers that the matter had been confirmed for hearing in February 2026 but around 4th December 2026, the Plaintiff discovered new and material audio evidence, which was not within its knowledge and possession at the time it filed its initial bundle of documents. 3. She contends that the newly discovered evidence is crucial to the just determination of the suit as it clarifies the sequence of events leading to the claim herein thus the Plaintiff stands to suffer irreparable prejudice if the same is not admitted. She reiterates that the Defendant will not suffer prejudice. Response 4. The application is opposed by the Defendant vide the replying affidavit of its representative, one James Kibei. He avers that the alleged new evidence is said to have been ELC L CIVIL CASE NO. E289 OF 2024 Ruling Page 2 of 13 discovered on a future date (4th December 2026), and that there is no demonstration that the same could not, with the exercise of reasonable diligence, have been obtained and produced at the proper time. Further, that having listened to the impugned audio, it was recorded secretly without consent of the parties who were at negotiations with their advocates, thus it is inadmissible for violating rights of privacy of those recorded in the conversation. 5. He insists that the impugned audio recording has been tendered without a certificate of compliance as mandatorily required under Section 106B of the Evidence Act, rendering it inadmissible. Further, that its admission will prejudice the Defendant as it has already filed its defence and counterclaim and prepared its witnesses in preparation for trial. 6. In response to the Defendant’s reply, the Plaintiff filed a supplementary affidavit sworn by its director. She clarified that the audio evidence was discovered about 4th December ELC L CIVIL CASE NO. E289 OF 2024 Ruling Page 3 of 13 2025. She denies that the recording was illegally procured and avers that its admissibility can only be determined at the hearing. She also annexed a certificate of Electronic Evidence, authenticating the demised recording and urged the court to admit the new evidence. 7. The application was canvassed by way of written submissions. Submissions 8. The Plaintiff submits that the newly discovered audio evidence is directly relevant to the core issues in the suit thus it ought to be admitted to allow the Plaintiff not to be condemned unheard under Article 50 (1) of the Constitution. Further, that the new evidence does not introduce any surprise issues or cause of action thus the Defendant will not be ambushed. 9. To buttress its averments, the Plaintiff relied on the following decisions: Catherine Chepkemoi Mukenyang v Evanson ELC L CIVIL CASE NO. E289 OF 2024 Ruling Page 4 of 13 Pkemei Lomaduny & another [2022] eKLR and Mahamud v Mohamad & 3 others [2018] KESC 62(KLR). 10. On its part, the Defendant urges the court to disallow the additional evidence sought to be introduced on the basis that is was secured after an inexcusable lapse of time since the suit was first filed at Milimani Commercial Court in 2023 before being transferred to this court in 2024.Further, that even if the evidence was discovered on 4th December 2025, there is still a delay. 11. It also insists that the matters purportedly captured in the alleged audio recording relate to issues that were already within the Plaintiff’s knowledge at the time of filing the suit. Further, that Article 31 (c) and (d) of the Constitution guarantees the right to privacy while Section 28 (2) (c) of the Data Protection Act provides that data may only be collected indirectly when the subject has consented, thus illegally obtained data offends Article 50(4) of the ELC L CIVIL CASE NO. E289 OF 2024 Ruling Page 5 of 13 Constitution which provides that evidence obtained in violation of any right is to be excluded at trial. It also contends that since the recording was obtained during a negotiation meeting between the parties and their advocates, the same is on a without prejudice basis. 12. To buttress it averments, the Defendant relied on the following decisions: Too v Tum [2014] KEELC 512 (KLR), Aluodo v Cisco Systems Management B.V (Cause 1382 of 2018) [2023] KEELRC 825 (KLR), Kenya Railways Corporation & 2 others v Okoiti & 3 others [2023] KESC 38 (KLR) ,Shakunt Rajnikant v Bhupendra Motichand Shah t/a John Cumming & Company & another [2021] KEHC 3655(KLR) and Mbugua v Echo Network Africa [2024] KEELRC 343 (KLR). Analysis and Determination 13. Upon consideration of the instant Notice of Motion application including the respective affidavits and rivalling submissions, the only issue for determination is whether the ELC L CIVIL CASE NO. E289 OF 2024 Ruling Page 6 of 13 Plaintiff has met the threshold for grant of leave to file and serve additional evidence after the close of pleadings. 14. The Plaintiff claims that around 4th December 2025, it discovered new and material audio evidence which was not within its knowledge and possession at the time it filed its initial bundle of documents. 15. The Defendant has opposed the prayer on the basis that it will be prejudiced since it has already filed its response, witness statements and documents to be relied on at trial. It also raised an objection regarding the admissibility of the audio recording, on the basis that it infringes on its constitutional right to privacy which under Articles 31 and 50(4) of the Constitution, is protected by the "without prejudice" rule. 16. The admission of additional evidence after close of pleadings is a discretionary power of the court exercised in furtherance ELC L CIVIL CASE NO. E289 OF 2024 Ruling Page 7 of 13 of the overriding objective under Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution. 17. The Court aptly explained this discretion in the case of Ochieng v Agricultural Development Corporation & 3 others; National Land Commission (Interested Party) (Environment & Land Petition E002 of 2022) [2024] KEELC 5326 (KLR) (18 July 2024) (Ruling) as follows: “While exercising discretion judiciously, courts would be extremely cautious and hesitant to permit a party to file any documents after they have either instituted the matter or filed a Defence or Response respectively. The threshold to be met for such a party should be so high that it basically leaves no room for late filing, and there are many good reasons for this. One is that it would wade off the fishing expedition of evidence in order to build claims or cases. The other reason is that by the time a party sets to institute a matter or file a response to one he/she ought to have in his/her possession all the ELC L CIVIL CASE NO. E289 OF 2024 Ruling Page 8 of 13 documents that answer to or support the allegation. If he/she does not have them, he should seek time before filing the pleadings to be permitted to obtain the documents and file them, and he/she should indicate which and the nature of the documents he/she seeks time to obtain, while explaining why he does not have them. This is to limit possibilities of making or ‘manufacture’ of documents tailored to suit the case or purporting to panel beat the ‘truth’. Furthermore, the advantage of filing all documents with the pleadings is to bring to the attention of the adverse party the evidence it is to confront and prepare for it. This allays the fear and does away with the possibility of trial by ambush which goes against the right to fair hearing. It also would do away with possibilities of the adverse parties seeking time to amend pleadings or moving the court for leave to put in or introduce to the record additional evidence or information in answer to the late documents. This directly does away with deliberate and carefully designed backlogs and delays in determination of disputes hence helping courts and parties to achieve the overriding objective of the Civil ELC L CIVIL CASE NO. E289 OF 2024 Ruling Page 9 of 13 Procedure Act and provided for under Section 1A(1) which is “…to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act,” and for this Court, being, Section 3(1) of the Environment and Land Court Act.” 18. Further, the Court of Appeal stated as follows in a similar matter, Govani v Shah & another; Jaff (Third party) [2024] KECA 1775 (KLR): “23. The single issue for determination is whether the learned Judge exercised her discretion properly in refusing to grant an adjournment and to grant leave for the appellant to file documents and witness statements.24. Discretion is generally defined to mean the power and/or ability an individual has, to make decisions based on the assessment of the circumstances before him. The Black’s Law Dictionary 9th Edition defines judicial discretion as: “court’s power to act or not act when a litigant is not entitled to demand the act as a matter of right.”........31. To us, it behoves a party who is in default, and who seeks the court’s ELC L CIVIL CASE NO. E289 OF 2024 Ruling Page 10 of 13 discretion, to place relevant material before the court to satisfy the court that despite his/her omission, discretion should nevertheless be exercised in his/her favour. This, is a burden which the appellant has not discharged.” 19. In this instance the additional evidence which the Plaintiff seeks leave to file and serve includes audio recording which was procured during a negotiation meeting between the parties herein. The Plaintiff has not confirmed if it obtained consent of the Defendant to record it. The Plaintiff claims it discovered the evidence after close of pleadings and filing of the initial bundle. 20. Insofar as this Court has discretion to grant leave to a party to place before the Court any additional evidence, this should not be prejudicial to the opposing party. Further, it should not be evidence collected without consent or communication on a ‘without prejudice’ basis. At this juncture, I note the Plaintiff has not disputed that it undertook the audio recording ELC L CIVIL CASE NO. E289 OF 2024 Ruling Page 11 of 13 without knowledge or consent of the Defendant, during a negotiation over the dispute herein. 21. Articles 31 (c) and (d) of the Constitution provides as follows: ‘Every person has the right to privacy, which includes the right not to have— (c) information relating to their family or private affairs unnecessarily required or revealed; or (d) the privacy of their communications infringed.’ 22. Further section 28 (2) (c) of the Data Protection Act provides that data may only be collected indirectly when the subject has consented. It is my considered view that since the Defendant never had knowledge nor consented to the audio recording the Plaintiff seeks to produce, it’s right to privacy was violated. 23. In the foregoing, while relying on the legal provisions cited and associating myself with the decisions quoted and applying them to the circumstances at hand, I find that it would be prejudicial to the Defendant, if the Plaintiff was ELC L CIVIL CASE NO. E289 OF 2024 Ruling Page 12 of 13 granted leave to file and serve additional evidence which includes audio evidence. Furthermore, I opine that since pleadings had been closed and parties filed their respective documents, there is no possibility of ambush which goes against the right to fair hearing and delay the hearing of a matter since the adverse party would seek time to amend pleadings and file additional evidence. 24. In the circumstances, I find the instant Notice of Motion application unmerited and will disallow it. 25. Costs will be in the cause. DATED SIGNED AND DELIVERED AT NAIROBI THIS 30TH DAY OF JUNE, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Ms Kamanja for Abdullahi for Applicant Ms Njoroge for Respondent Court Assistant: Vena ELC L CIVIL CASE NO. E289 OF 2024 Ruling Page 13 of 13