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ELCDismissedNot stated in excerpt (filed in 2013, at Kisumu)· [2018] KEELC 943 (KLR)

M/S Flavemart Enterprises Limited v Kenya Railways Corporation [2018] KEELC 943 (KLR)

Environment and Land Court
2 November 2018
BOB. N. Olao
897 words in judgment
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The bottom line

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The Environment and Land Court in Kisumu refused a defendant's late attempt to add new evidence mid-trial, warning against trial by ambush.

What this practically means

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Executive summary

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This is an interlocutory ruling delivered in the course of trial at Kisumu by B. N. Olao, Judge, in a land matter filed in 2013 with a defence and counterclaim. After the Plaintiff closed its case and the Defendant had called one witness, counsel for the Defendant, Mr. Tom Mutei, sought an adjournment to call a surveyor and leave to file a further list of documents, arguing this would serve the interest of justice. Counsel for the Plaintiff, Mr. Ken Omollo, opposed, noting the Plaintiff had closed its case, the Defendant had filed documents only in 2016 and witness statements in 2018, and granting leave would prejudice the Plaintiff and amount to an abuse of process. The court analysed Order 3 Rule 2 and Order 7 Rule 5 of the Civil Procedure Rules, which require parties to furnish evidence before trial to ensure orderliness and prevent trial by ambush. It held that the rules do not bar a party, with leave, from filing further documents after hearing has commenced, consistent with the fair-hearing guarantee in Article 50 of the Constitution, but each application must be assessed on reasons for the delay, the stage of proceedings and the prejudice to the other party. The court distinguished its own earlier decision in Marcus Kiranga Nimrod v Nessy Kuthii Justus (Kerugoya ELC No. 737 of 2013), where leave had been granted because the plaintiff had not closed its case. Here, no explanation was offered for the delay, both parties had confirmed readiness on 2nd October 2018, and the Plaintiff would be unable to rebut new evidence. The application was rejected.

Key legal issues

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Whether leave should be granted to file further documents and call an additional witness mid-trial

Holding

Leave refused because the Plaintiff had closed its case, the Defendant had testified and been cross-examined, no reason was given for the delay, and both parties had earlier confirmed they had filed all documents and were ready for trial.

Reasoning

Order 3 Rule 2 and Order 7 Rule 5 require parties to furnish evidence before trial to prevent trial by ambush. Leave to file further documents is available but discretionary, assessed on reasons for the delay, the stage of proceedings and prejudice to the other side. Here the Plaintiff had closed its case and could not rebut new evidence, and the Defendant had enjoyed years since 2013 to prepare, so allowing the application would prejudice the Plaintiff and undermine a fair trial.

p. 1

Legal principles established

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  • The Civil Procedure Rules do not bar a party, with leave of the court, from filing further documents after hearing has commenced, but each case must be considered on its own circumstances including reasons for delay, stage of proceedings and prejudice.
  • The right to a fair trial is not a licence to introduce new evidence late where it prejudices the opposing party.

Court orders

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  1. 1.The Defendant's application for leave to file a further list of documents and call another witness was rejected

Authorities

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Legislation

  • Civil Procedure RulesOrder 3 Rule 2
  • Civil Procedure RulesOrder 7 Rule 5
  • Constitution of KenyaArticle 50

Cases cited (1)

  • MARCUS KIRANGA NIMROD & ANOTHER V NESSY KUTHII JUSTUS
    Kerugoya ELC Case No. 737 of 2013 (2017 eKLR)
Jurisdiction invoked
Civil Procedure Rules (Order 3 Rule 2 and Order 7 Rule 5); Article 50 of the Constitution (fair hearing)

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, "M/S Flavemart Enterprises Limited v Kenya Railways Corporation [2018] KEELC 943 (KLR)", Case Analysis (2018). Not stated in excerpt (filed in 2013, at Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/943/eng@2018-11-02

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