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ELCDismissedCase No 338 of 2014· [2018] KEELC 2957 (KLR)

Paul Ndirangu Mbugua & 85others v Ministry of Lands & 59 others [2018] KEELC 2957 (KLR)

Environment and Land Court (sitting at Nakuru)
22 May 2018
DOD. O. Ohungo
804 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Nakuru refused to let state defendants file late witness statements after missing earlier deadlines, punishing them with costs.

What this practically means

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Executive summary

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This is an interlocutory ruling delivered by D. O. Ohungo, Judge, at Nakuru on 22 May 2018, arising from a suit heard on 21 February 2018. At a mini call over, counsel for the 1st to 3rd defendants, instructed by the Attorney General, confirmed readiness to proceed. The sole plaintiff testified, was cross-examined by counsel for all defendants, and the plaintiffs' case closed. The 1st to 3rd defendants then applied to file witness statements limited to documents produced by the plaintiffs and referred to by the 4th to 60th defendants, claiming the statements would bring clarity to the issues. The 4th to 60th defendants did not oppose, but the plaintiffs strenuously opposed, noting the defendants' earlier confirmation of readiness without witness statements, prior non-compliance with Order 11 directions, and asserting the application was made in bad faith. The court reviewed the record, noting repeated indulgences including an order of 11 March 2015 granting 30 days to file defence and compliance documents, and the fixing of a hearing date on 14 November 2016 in the defendants' presence. Relying on its earlier decision in Nakuru Automobile House Ltd v Lawrence Maina Mwangi & Another [2007] eKLR and section 1A(3) of the Civil Procedure Act, the court held that the defendants had ample opportunity to comply, had filed no defence, and that allowing late witness statements would be unjust and prejudicial to the plaintiffs. The application was dismissed with costs to the plaintiffs.

Key legal issues

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01

Whether witness statements may be filed by defendants who have not complied with Order 11 after the plaintiffs' case has closed

Holding

The application was dismissed; the defendants had ample opportunity to comply with Order 11, filed no defence, and their proposed witness statements would be superfluous and prejudicial

Reasoning

The record showed repeated indulgences, including time granted on 11 March 2015 to file defence and compliance documents and a hearing date fixed on 14 November 2016 in the defendants' presence. The defendants still filed no defence. The court applied the disclosure rationale of Order 11 and section 1A(3) of the Civil Procedure Act, holding that allowing the statements would spring a surprise on the plaintiffs and introduce a new angle after the close of the plaintiffs' case, with damage not curable by reopening the plaintiffs' case.

p. 1

Legal principles established

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  • Order 11 of the Civil Procedure Rules requires full disclosure so that each party knows the exact case it will meet, and last-minute applications to adduce additional evidence must be assessed against this disclosure regime
  • Under section 1A(3) of the Civil Procedure Act, parties must assist the court to further the overriding objective and must comply with the court's directions and orders
  • It is unjust to permit a party to introduce a wholly new case by witness statements after the opposing party's case has been heard and closed

Court orders

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  1. 1.The 1st to 3rd defendants' application to be allowed to file witness statements at this stage is dismissed
  2. 2.Costs of the application awarded to the plaintiffs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 11
  • Civil Procedure ActSection 1A(3)

Cases cited (1)

  • Nakuru Automobile House Ltd –vs– Lawrence Maina Mwangi & Another
    [2007] eKLR
Jurisdiction invoked
Original civil jurisdiction of the court under the Civil Procedure Act and Civil Procedure Rules, 2010

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, "Paul Ndirangu Mbugua & 85others v Ministry of Lands & 59 others [2018] KEELC 2957 (KLR)", Case Analysis (2018). Case No 338 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2957/eng@2018-05-22

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