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ELCAllowedELC 47 of 2010 (consolidated with ELC 816 of 2012)· [2019] KEELC 5061 (KLR)

Rajab Ahmed Karume v Chief Registrar, Attorney General & Insurance Training and Education Trust [2019] KEELC 5061 (KLR)

Environment and Land Court
8 May 2019
EOE.O. Obaga
779 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed late witness statements because no party would be ambushed and everyone's right to be heard stayed intact.

What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Nairobi (Obaga J, 8 May 2019) arose during the hearing of consolidated suits ELC 47 of 2010 and ELC 816 of 2012. After the second plaintiff's witness in ELC 47 of 2010 testified, Mr. A.G.N. Kamau applied for leave to file witness statements for three further witnesses: Mr. George Gachihi, Hassan Lakicha Advocate, and Mr. Joseph Ndungu Gathondu. He explained the delay by the need to first seek leave and the witnesses being out of town. Counsel for the plaintiff in ELC 816 of 2012 (Mr. Muchoki), the 1st and 2nd defendants (Mr. Motari) and the 3rd defendant (Mr. Ochieng Oduol) opposed the application, arguing it came too late, no good reason was shown, the applicant was building his case as hearing progressed, and the basis for calling Mr. Lakicha was unclear. The court framed a single issue: whether leave should be granted. Examining the record, the court noted that Lakicha was mentioned in Mahat Adan Abdirahman's statement as having prepared a sale agreement; Gathondu substituted the late Thumbi Kariuki, who died on 10 October 2017 before completing his evidence; and witness summons for Lakicha and Gachihi had been sought on 24 May 2017, showing consistent intention to call them. Holding that the right to be heard is fundamental and denial is exceptional, and that no party would be prejudiced or ambushed, the court granted leave to file the three witness statements. No costs order was made.

Key legal issues

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Whether leave should be granted to file witness statements late in the course of hearing

Holding

Leave granted; no prejudice to other parties and no ambush arises where the witnesses were previously mentioned in other statements or substituted for a deceased witness

Reasoning

The court perused the existing statements and found Hassan Lakicha was mentioned in Mahat Adan Abdirahman's statement as having prepared a sale agreement; Joseph Ndungu Gathondu was called only because Thumbi Kariuki died before completing his evidence; and summons for Lakicha and Gachihi had been sought in 2017, showing a consistent intention to call them. Allowing the statements would therefore not prejudice the opposing parties.

p. 2

Legal principles established

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  • The right to be heard is fundamental and should only be denied in exceptional cases

Court orders

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  1. 1.Leave granted to Mr. A.G.N. Kamau to file witness statements of Hassan Lakicha, Advocate, Mr. George Gachihi and Mr. Joseph Ndungu Gathondu
Jurisdiction invoked
Inherent case-management powers of the Environment and Land Court over consolidated suits ELC 47 of 2010 and ELC 816 of 2012

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, "Rajab Ahmed Karume v Chief Registrar, Attorney General & Insurance Training and Education Trust [2019] KEELC 5061 (KLR)", Case Analysis (2019). ELC 47 of 2010 (consolidated with ELC 816 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5061/eng@2019-05-08

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