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ELCOtherNot stated in the judgment (plaint filed 21 December 2011)· [2014] KEELC 116 (KLR)

Jemeli Chepkisa v James R. Rono & another [2014] KEELC 116 (KLR)

Environment and Land Court
29 October 2014
MSMunyao Sila
1,940 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court blocked a defendant from adding surprise witnesses after the plaintiff finished testifying, ruling late evidence would make the trial unfair.

What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Eldoret arose mid-trial in a land dispute over parcel Nandi/Kaptel/263, in which the plaintiff claimed the land was bought jointly with her co-wife and held in trust by the late registered owner, and sought a declaration that a 1998 Land Disputes Tribunal award of 3 acres to the defendant's father was null and void, plus a permanent injunction. After the plaintiff closed her case on 21 January 2014, counsel for the defendant sought to introduce witness statements for the defendant and two new witnesses, filed on 28 January 2014. The plaintiff's counsel objected, arguing the evidence was an ambush contrary to Article 50 of the Constitution and Order 7 Rule 5 of the Civil Procedure Rules. The court held that a defendant must file witness statements with the defence, and any late statements require leave sought at least fifteen days before the trial conference; no such leave was sought at the 16 May 2013 mention. Following its own earlier decision in Johana Kipkemei Too vs Hellen Tum and the Supreme Court's approach in Raila Odinga vs IEBC, the court held that although Article 159(2)(d) permits relaxation of procedural technicalities, prejudice increases as the trial progresses, and the new evidence, never put to the plaintiff in cross-examination, would cause an unfair trial. The court clarified that no leave had been granted on 21 January 2014; the direction to file statements was only to enable the plaintiff to decide whether to object. The application to introduce the new evidence was disallowed, and the defendant was confined to the evidence disclosed with the defence.

Key legal issues

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01

Whether new defence witnesses may be introduced after the plaintiff has closed her case

Holding

The application was disallowed; the defendant must proceed only on the evidence disclosed with the defence.

Reasoning

Order 7 Rule 5 requires witness statements to accompany the defence, with late statements admissible only on leave sought at least 15 days before the trial conference. No such leave was sought at the 16 May 2013 mention. The plaintiff gave evidence and closed her case without knowledge of the new evidence, which was never put to her in cross-examination. The rules are designed to curb trial by ambush, and Article 50(1) guarantees a fair trial. The court's discretion to admit late evidence under Article 159(2)(d) narrows as the trial progresses, and here the prejudice to the plaintiff outweighed any benefit.

p. 3
02

Whether leave to introduce the new evidence had been granted on 21 January 2014

Holding

No leave was granted; the court only directed filing of the statements so the plaintiff could decide whether to accede or object.

Reasoning

The court clarified that its direction of 21 January 2014 to file statements within 7 days was not leave to introduce the evidence. Its purpose was to enable the plaintiff to make an informed decision on whether to allow or oppose the introduction of the new witnesses' testimony.

p. 4

Legal principles established

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  • A defendant must file witness statements with the defence; late statements require leave sought at least fifteen days before the trial conference, and the court retains discretion under Article 50(1) and Article 159(2)(d) to disallow late evidence where it would prejudice the opposing party.
  • The prejudice caused by late introduction of evidence increases as the trial progresses; evidence introduced after the opposing party has closed its case, which was never put to that party, will generally be disallowed as an ambush.

Court orders

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  1. 1.The defendant's application to introduce new witness evidence at the defence stage was disallowed
  2. 2.The defendant to proceed on the basis of the evidence identified in the witness statements and documents filed with the defence
  3. 3.It is so ordered

Authorities

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Legislation

  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure RulesOrder 7 Rule 5
  • Civil Procedure RulesOrder 3 Rule 7
  • Civil Procedure RulesOrder 4 rule 1(2)
  • Civil Procedure RulesOrder 11

Cases cited (2)

  • Johana Kipkemei Too vs Hellen Tum
    Eldoret E & L No. 975 of 2012 (2014) eKLR
  • Raila Odinga & 5 Others vs IEBC & 3 Others
    Supreme Court of Kenya, Petitions Nos. 3, 4 and 5 of 2013 (2013) eKLR
Jurisdiction invoked
Not expressly stated; the court exercised its trial jurisdiction under the Civil Procedure Rules (Order 7 Rule 5) and Article 50 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jemeli Chepkisa v James R. Rono & another [2014] KEELC 116 (KLR)", Case Analysis (2014). Not stated in the judgment (plaint filed 21 December 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/116/eng@2014-10-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.