[2023] KEELC 17393 (KLR)
The court found that the map in question was not a new document, as it had been referenced and marked for identification in the original proceedings in 2001. The court acknowledged that the supplementary list of documents containing the map was filed without leave, but, considering the long history of the case, the...
Source-derived case information.
- Citation
- [2023] KEELC 17393 (KLR)
- Parties
- Plaintiff: Sumbeiywo Primary School; Plaintiff: Paul Chebiego; Plaintiff: Jacob Barmao; Plaintiff: Michael Maiyo; Defendant: Kipsat Aiyabei; Defendant: Kangogo Chebiator; Defendant: National Land Commission; Defendant: Land Registrar, Uasin Gishu County
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 11 of 2016
- Procedural Posture
- Environment and Land Case / Ruling on Admissibility of Documentary Evidence (map) During Hearing
- Outcome
- Objection to production of the map dismissed; supplementary list of documents deemed properly filed; map admitted into evidence through PW4.
- Judges
- EO Obaga
- Legal Topics
- Admissibility of Evidence, Documentary Evidence, Retrial Procedure, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sumbeiywo Primary School
Plaintiff
Paul Chebiego
Plaintiff
Jacob Barmao
Plaintiff
Michael Maiyo
Plaintiff
Kipsat Aiyabei
Defendant
Kangogo Chebiator
Defendant
National Land Commission
Defendant
Land Registrar, Uasin Gishu County
Defendant
Procedural Posture
Environment and Land Case / Ruling on Admissibility of Documentary Evidence (map) During Hearing
Legal Issues
- 1 Whether the map sought to be produced by the plaintiffs is admissible despite being filed through a supplementary list of documents without leave of court.
- 2 Whether the introduction of the map would prejudice the defendants given its prior reference in earlier proceedings.
- 3 Whether the court should deem the supplementary list of documents as properly filed given the history and circumstances of the case.
Ratio Decidendi
The court found that the map in question was not a new document, as it had been referenced and marked for identification in the original proceedings in 2001. The court acknowledged that the supplementary list of documents containing the map was filed without leave, but, considering the long history of the case, the prior reference to the map, and the absence of prejudice to the defendants, the court exercised its discretion to deem the supplementary list as properly filed. The court further held that the introduction of the map through the current witness, who succeeded the deceased original witness, was appropriate and would not violate the rules of evidence or procedural fairness. The...
Court Disposition
Objection to production of the map dismissed; supplementary list of documents deemed properly filed; map admitted into evidence through PW4.
Orders
- The further supplementary list of documents filed on 5/12/2022 is deemed properly filed.
- The map objected to is admitted into evidence through PW4.
Full Case Text
Judgment text and source record
35 paragraphs
Sumbeiywo Primary School & 3 others v Aiyabei & 3 others (Environment & Land Case 11 of 2016) [2023] KEELC 17393 (KLR) (15 May 2023) (Ruling)
Neutral citation: [2023] KEELC 17393 (KLR)
Republic of Kenya
In the Environment and Land Court at Eldoret
Environment & Land Case 11 of 2016
EO Obaga, J
May 15, 2023
Between
Sumbeiywo Primary School
1st Plaintiff
Paul Chebiego
2nd Plaintiff
Jacob Barmao
3rd Plaintiff
Michael Maiyo
4th Plaintiff
and
Kipsat Aiyabei
1st Defendant
Kangogo Chebiator
2nd Defendant
National Land Commission
3rd Defendant
Land Registrar, Uasin Gishu County
4th Defendant
Ruling
1. On 7/12/2022 when this case was proceedings for hearing, PW4 Moses Kipkemboi Komen sought to produce a map containing the suit property. Mr Ochieng counsel for the 1st defendant objected to the production of the map arguing that the map sought to be introduced was introduced to these proceedings by way of a further supplementary list of documents which had been filed by the plaintiffs without leave of the court.
2. In response to the objection by Mr Ochieng, Mr Odongo for the 4th defendant argued that the map which was in the process of being produced was not a new document in that during the hearing of this case on 8/5/2001 before Justice Nambuye (as she then was), PW1 Michael Kandie Maiyo who has since died alluded to the said map which was marked as MFI 9. MR Odongo further argued that there will be no prejudice suffered if the map is marked for identification for production by a surveyor. He further stated that counsel for the 1st defendant will have opportunity to cross –examine on the same.
3. In response, Mr Ogongo urged the court to deem the plaintiffs’ further list of documents as having been properly filed. He stated that he learnt of the demise of PW1 Michael Kandie Maiyo the previous day. He stated it is the late Michael Kandie Maiyo who introduced the map in 1998 when this case was filed.
4. In response to the submissions by the counsel for the plaintiffs and the 4th defendant’s counsel, Mr Ochieng argued that the introduction of the map was meant to fill the gaps which had emerged and that section 34 of the Evidence Act was clear on instances when evidence of a deceased person can be admitted.
5. I have considered the objection to the production and or marking of the map which was being introduced by PW4. I have also taken into account the submissions by Mr Ogongo and Mr Odongo. This case was filed in 1998. The case was fully heard and a judgement was written by Justice Nambuye (as she then was) who forwarded it to Justice Dulu to deliver. The judgement was duly delivered but there was an appeal which was filed before the Court of Appeal. An issue was raised before the Court of Appeal on grounds that the judgement which had been written by Justice Nambuye (as she then was) and delivered by Justice Dulu was neither dated nor signed by Justice Nambuye (as she then was) who wrote it nor signed and dated by Justice Dulu who delivered it.
6. The judgement was declared a nullity and the file was remitted back to the High Court for re-trial. The High Court later transferred the file to the Environment & Land Court. There is no contention that in the hearing before Justice Nambuye (as she then was), PW1 Michael Kandie Maiyo who is now deceased alluded to the map which is now being objected to. The map was marked as MFI 9. This is therefore not a new document.
7. This court is only concerned with dispensing justice. There is no doubt that there was a supplementary list of documents which was filed by the Plaintiffs without leave of the court. Mr Ogongo pleaded with the court to deem the filed documents as having been duly filed. Considering the history of this case and the importance of the maps in determination of the dispute in this matter, I allow Mr Ogongo’s request and proceed to deem the further supplementary list of documents filed on 5/12/2022 as having been properly filed.
8. On the issue of the map which was objected to, I find that this map has been known to the parties since 1998 and its introduction in evidence will not prejudice the 1st defendant. Michael Kandie Maiyo, died after he had testified. The witness who was in the witness box testifying is the one who took over as secretary of the farm from the deceased. I therefore allow the introduction of the map through PW4. It is so ordered.
DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 15TH DAY OF MAY, 2023. E. O. OBAGAJUDGEIn the virtual presence of;Mr. Ogongo for Plaintiffs.Mr. Ochieng for 1st Defendant.Ms. Obino for National Land Commission.Mr. Odongo for 4th Defendant.Court Assistant –LabanE. O. OBAGAJUDGE15thMAY, 2023