[2020] KEELC 2029 (KLR)
The court found that the Defendants' application to reopen their case and produce the letters of consent and transfer form was meritorious. The court noted that the issue of whether the Land Control Board consents were obtained was central to the dispute and had been canvassed at trial. The Defendants were...
Source-derived case information.
- Citation
- [2020] KEELC 2029 (KLR)
- Parties
- Plaintiff: Mercy Njeri Nyaga; Plaintiff: Samwel Munyi Nyaga; Defendant: Erastus Njue Gitanguthi; Defendant: Justus Gatumuta; Defendant: The Presbyterian Foundation
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 224 of 2014
- Procedural Posture
- Notice of Motion / Ruling on Application to Reopen Defence Case for Production of Additional Evidence
- Outcome
- Application allowed; Defendants granted leave to reopen their case for production of additional documents.
- Legal Topics
- Reopening of Case, Admissibility of Evidence, Land Control Board Consents, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mercy Njeri Nyaga
Plaintiff
Samwel Munyi Nyaga
Plaintiff
Erastus Njue Gitanguthi
Defendant
Justus Gatumuta
Defendant
The Presbyterian Foundation
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Reopen Defence Case for Production of Additional Evidence
Legal Issues
- 1 Whether the Defendants should be granted leave to reopen their case to produce letters of consent from the Land Control Board and a transfer form.
- 2 Whether the Plaintiffs would suffer prejudice if the additional evidence is admitted.
- 3 Whether the Defendants' failure to produce the documents earlier was justified.
Ratio Decidendi
The court found that the Defendants' application to reopen their case and produce the letters of consent and transfer form was meritorious. The court noted that the issue of whether the Land Control Board consents were obtained was central to the dispute and had been canvassed at trial. The Defendants were previously unable to produce the documents due to unavailability at the Lands Office, and their explanation for the delay was not unreasonable. There was no evidence that the application was intended to delay the proceedings, nor was there any demonstration of prejudice to the Plaintiffs if the documents were admitted. The Plaintiffs would have the opportunity to cross-examine the...
Court Disposition
Application allowed; Defendants granted leave to reopen their case for production of additional documents.
Orders
- Leave granted to the Defendants to reopen their case for the purpose of producing the letters of consent for Title Nos. Ngandori/Kiriari/3208 & 3209 and transfer form for Title No. Ngandori/Kiriari/3210.
- The Plaintiffs shall be at liberty to cross-examine the Defendants on the said documents and to call for evidence in rebuttal.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT EMBU
E.L.C. CASE NO. 224 OF 2014
FORMERLY KERUGOYA ELC 820 OF 2014
MERCY NJERI NYAGA.........................................................................1ST PLAINTIFF
SAMWEL MUNYI NYAGA...................................................................2ND PLAINTIFF
(Suing as Legal Representatives of the Estate ofNYAGA MUNYI.............(DECEASED)
VERSUS
ERASTUS NJUE GITANGUTHI..........................................................1ST DEFENDANT
JUSTUS GATUMUTA..........................................................................2ND DEFENDANT
THE PRESBYTERIAN FOUNDATION.............................................3RD DEFENDANT
RULING
1. By a notice of motion dated 6th January 2020 expressed to be brought under Sections 1A & 1B of the Civil Procedure Act (Cap. 21) and Order 51 Rule 1of the Civil Procedure Rules, the Defendants sought leave to reopen the defence case in order to produce copies of letters of consent from the Land Control Board with respect to Title Nos. Ngandori/Kiriari/3208 & 3209.
2. The said application was based upon the grounds set out in the notice of motion and the supporting affidavit sworn by the 1st Defendant on 6th January 2020. The gist of the Defendants’ application was that they were unable to obtain copies of the consent letters from the Lands Office on time hence by the time they were made available the suit had already been heard. The Defendants also filed a further affidavit sworn by their advocate on 28th January 2020 annexing a copy of the transfer form for Title No. Ngandori/Kiriari/3210 which they intended to produce in this suit.
3. The Plaintiffs filed a replying affidavit sworn by the 1st Plaintiff on 21st January 2020 in opposition to the said application. It was contended, inter alia, that the Defendants had sufficient time to obtain the documents sought to be produced; that the additional documents would not alter the outcome of the suit; that a further delay would be occasioned if the application was allowed; and that the additional evidence would be prejudicial to them if admitted.
4. When the said application was listed for hearing on 5th February 2020 it was canvassed orally by the parties and the ruling deferred to 13th February 2020.
5. The court has considered the Defendants’ said application, the Plaintiffs’ replying affidavit in opposition thereto and the entire material on record. The court has noted that the question of whether or not the consent of the Land Control Board was obtained for the impugned transactions was canvassed at the trial. The Plaintiffs challenged the Defendants to produce them but the latter were unable to do so since the consent letters were not available then. It is not clear why the Plaintiffs are opposing the intended production of the consents when they had earlier on challenged the Defendants to produce them.
6. There is no material on record to demonstrate that the Defendants’ said application is merely intended to delay the conclusion of the suit. It is still possible for the additional evidence to be received before the scheduled date of judgment. There is equally no demonstration that the Plaintiffs would suffer any prejudice if the consent letters from the Land Control Board are admitted in evidence. The Plaintiffs shall be accorded an opportunity to cross-examine the Defendants on those letters and, if need be, to adduce evidence in rebuttal. The court is satisfied that the documents sought to be produced are relevant to the matters in dispute herein hence they may assist the court in arriving at a just decision. The court is also of the opinion that Defendants’ explanation for their failure to produce those documents at the trial is not unreasonable.
7. The upshot of the foregoing is that the court finds merit in the Defendants’ notice of motion dated 6th January 2020. Accordingly, the court makes the following orders for disposal thereof:
a) Leave be and is hereby granted to the Defendants to re-open their case for the purpose of producing the letters of consent for Title Nos. Ngandori/Kiriari/3208 & 3209 and Transfer form for Title No. Ngandori/Kiriari/3210.
b) The Plaintiffs shall be at liberty to cross examine the Defendants on the said documents and to call for evidence in rebuttal.
c) Costs of the application shall be in the cause.
8. It is so ordered.
RULING DATED, SIGNED and DELIVERED in open court at EMBU this 13TH DAY of FEBRUARY, 2020
In the presence of both the 1st & 2nd Plaintiff and Ms. Kithaka holding brief for Ms. Ndorongo for the Defendants.
Court Assistant Mr. Muinde
Y.M. ANGIMA
JUDGE
13. 02. 2020