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ELCDismissedNot stated in the judgment· [2017] KEELC 609 (KLR)

Joseph Owiti Odema v James Okoko Kadu [2017] KEELC 609 (KLR)

Environment and Land Court
29 November 2017
SKS.M. Kibunja
828 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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By notice of motion dated 9th May 2017, the Defendant, James Okoko Kadu, sought leave to file and serve a certified English translation of a 1979 land sale agreement originally in Dholuo, together with its certificate, and further sought that the evidence of one Vitalis Mwatete Orwya be taken and preserved. The Plaintiff, Joseph Owiti Odema, opposed the application by replying affidavit. The court framed three issues: whether a reasonable case was made for filing a new document after the Plaintiff closed his case; whether reasonable grounds existed for taking the witness's evidence; and costs. The court found that the Defendant had known since 13th December 2016, when the Plaintiff testified and his case was closed, that the Dholuo agreement could not be referred to without a certified translation, yet filed the application only a day before the defence hearing, compelling an adjournment. Relying on the superior court decisions cited by counsel and on Order 11 of the Civil Procedure Rules, the court held that allowing fresh documents at that stage would prejudice the Plaintiff, who had closed his case believing the Dholuo document would not be used as an exhibit. On the witness, the court found preservation unnecessary because the case was already at defence hearing stage and the witness could be called on the first day of the hearing. The notice of motion was dismissed with costs.

Key legal issues

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01

Whether leave should be granted to file a certified English translation of a Dholuo sale agreement after the plaintiff's case was closed

Holding

Leave refused; the application was made late and would prejudice the Plaintiff who closed his case believing the Dholuo document would not be used as an exhibit.

Reasoning

The Defendant knew since 13th December 2016 that the Dholuo agreement was declined for want of translation, yet filed the application only a day before the defence hearing, forcing an adjournment. Order 11 requires early filing of documents so parties can prepare; allowing the translation now would deny the Plaintiff the opportunity to respond effectively.

p. 2
02

Whether the evidence of Vitalis Mwatete Orwya should be taken and preserved

Holding

Refused as unnecessary since the matter is at defence hearing stage.

Reasoning

Preservation of evidence is appropriate before hearing; here the defence hearing was imminent and the defence may call the witness on the first day of hearing, so no prejudice arises in refusing preservation.

p. 2

Legal principles established

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  • Parties must file their statements and documents with their pleadings under Order 11 of the Civil Procedure Rules to allow the other party to prepare in advance before the hearing commences.
  • Courts will not permit the filing of fresh documents after the opposing party has closed its case, as this would cause prejudice.

Court orders

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  1. 1.The Defendant's notice of motion dated 9th May 2017 is dismissed with costs.
  2. 2.The defence counsel will be at liberty to move the court to take the evidence of the named witness on the first day of the defence hearing.

Authorities

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Legislation

  • Civil Procedure RulesOrder 11
Jurisdiction invoked
Not stated; interlocutory application under the Civil Procedure Rules in an Environment and Land Court suit

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, "Joseph Owiti Odema v James Okoko Kadu [2017] KEELC 609 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/609/eng@2017-11-29

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