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ELCAllowed· [2020] KEELC 1542 (KLR)

Eunice Mugure Muchori & 2 others v Peter Macharia [2020] KEELC 1542 (KLR)

Environment and Land Court
30 July 2020
MNMwangi Njoroge
644 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Kitale threw out documents a defendant filed without the court's permission and barred their witness from testifying.

What this practically means

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Executive summary

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This is a ruling by Mwangi Njoroge, Judge of the Environment and Land Court at Kitale, delivered on 30 July 2020, on an application by the plaintiffs' counsel, Mr. Kiarie, seeking to expunge documents filed by the defendant on 27 July 2020 after the hearing date had been fixed, and to disqualify the defendant's second witness, Joseph Wainaina Ndung'u. Mr. Kiarie argued that defendant's counsel, Mr. Okoth, was not new to the matter and had failed to file the documents until 27 July 2020, serving them on 28 July 2020, and that no leave of court had been sought to file them. Mr. Okoth responded that he had assumed the defendant's erstwhile advocate had filed the necessary documents, and that most of the documents were not new, having been attached as annextures to affidavits at the interlocutory stage; he argued their admission would cause no prejudice. Mr. Kiarie countered that annexture to interlocutory affidavits did not admit the documents at trial, and that compliance with Order 11 of the Civil Procedure Rules was necessary. The court noted that its Ruling of 30 June 2020, which gave the defendant a second chance to be heard, had barred the filing of any interlocutory application without leave and directed that the hearing proceed on the documents on record. The defendant filed the impugned documents 30 days later without seeking leave. The court held it could not take cognisance of documents filed in breach of the letter and spirit of subsisting orders, expunged all documents filed on 27 July 2020, disqualified the defendant's second witness, and directed that the hearing proceed on documents filed in Order 11 compliance before 30 June 2020. No costs order was made.

Key legal issues

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01

Effect of filing documents without leave contrary to subsisting case-management orders

Holding

The documents filed on 27/7/2020 without leave were expunged from the record.

Reasoning

The Ruling of 30/6/2020 had ordered that no interlocutory application could be filed without leave of court, to stamp out delaying tactics, and that the hearing proceed on the documents on record. The defendant filed documents 30 days later without seeking leave, remaining in default. The court held it could not take cognisance of documents filed in breach of the letter and spirit of those orders.

p. 1
02

Annexure of documents to affidavits at interlocutory stage as a substitute for Order 11 compliance

Holding

Inclusion of documents as annextures to affidavits at the interlocutory stage does not qualify them for admission at trial; Order 11 compliance is required for documents to be relied on at the hearing.

Reasoning

The defendant argued the impugned documents were not new, having been attached to affidavits in the interlocutory application. The plaintiffs countered that such annexure did not admit them at trial and that compliance with Order 11 was a necessity. The court agreed and ordered the hearing to proceed only on documents filed in Order 11 compliance before the 30/6/2020 Ruling.

p. 1

Legal principles established

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  • A party must seek leave of court before filing documents where the court has ordered that no interlocutory filing be made without leave; documents filed in breach of subsisting orders cannot be cognisable by the court.

Court orders

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  1. 1.All documents filed on 27/7/2020 by the defendant be expunged from the record
  2. 2.The defendant's second witness, one Joseph Wainaina Ndungu, be disqualified
  3. 3.The hearing shall proceed on the basis of any documents the defendant had filed in compliance with Order 11 of the Civil Procedure Rules before the Ruling made on 30/6/2020 was issued

Authorities

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Legislation

  • Civil Procedure RulesOrder 11
Jurisdiction invoked
Inherent powers of the court in case management under the Civil Procedure Rules (Order 11); prior orders of the court dated 30/6/2020 requiring leave before filing interlocutory applications

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, "Eunice Mugure Muchori & 2 others v Peter Macharia [2020] KEELC 1542 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1542/eng@2020-07-30

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