Priscilla Jeruto Kisoso & Kiporot Ole Totona Alias Singo Arap Totona & 3 others [2016] KEELC 263 (KLR)
The bottom line
#A Kenyan court ruled that failing to serve a filed document is a fixable mistake, not a fatal error, so the plaintiff's late documents were admitted.
What this practically means
#Executive summary
#Key legal issues
#Whether the court's earlier ruling striking out unserved parties compelled a reciprocal striking out of the plaintiff's unserved documents
No; each application must be considered on its own merits, not on an 'eye for an eye' basis
Counsel for the defendant argued the sword of justice cuts both ways. The court accepted the maxim but rejected its use to tie the court's hands, illustrating with a football analogy that denying one party relief does not oblige the court to deny the other party equivalent relief. Every application must be weighed independently on its own merits.
Whether non-service of a filed document is an illegality removing the court's discretion
It is not; the Civil Procedure Rules do not forbid late service, which is an irregularity curable by leave
The court consulted the Concise Oxford English Dictionary definition of illegality and compared it with the Civil Procedure Rules, which prescribe when pleadings and documents may be served but do not prohibit service thereafter. Late service may be sanctioned by the court on application for service out of time, and the discretion must be exercised judicially on reasons given.
Whether the plaintiff's unserved witness statements should be admitted and the witnesses allowed to testify
Yes; the mis-service on the wrong law firm was a pure mistake causing no prejudice, compensable by costs and liberty to add further evidence
The witness statements were drawn for service on M/s Gordon Ogolla & Co. Advocates, a firm previously in the proceedings, suggesting confusion. The trial was starting de novo, so earlier testimony was irrelevant. The defendant was to be given leeway to assess whether to call additional witnesses or rely on additional documents, and costs would compensate any prejudice.
Legal principles established
#- A court must assess every application on its own merits and is not bound to grant or deny a later application merely because of its earlier ruling on an application by the other party
- Failure to serve a filed document within the prescribed time is an irregularity, not an illegality, and the court retains a discretion to admit the document out of time
Court orders
#- 1.The Reply to Defence and Defence to Counterclaim filed on 29 November 2011 is admitted out of time
- 2.The two plaintiff's witness statements are admitted and to be served forthwith
- 3.The defendants are at liberty to file any additional witness statement and/or documents within 30 days
- 4.Today's costs are shouldered by the plaintiff
- Jurisdiction invoked
- Environment and Land Court, original civil jurisdiction (HCC No. 20 of 2006)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Priscilla Jeruto Kisoso & Kiporot Ole Totona Alias Singo Arap Totona & 3 others [2016] KEELC 263 (KLR)", Case Analysis (2016). HCC No. 20 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/263/eng@2016-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.