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ELCDismissed· [2020] KEELC 2019 (KLR)

Samwel Kiptoo Rop & another v Beatrice Nakhumicha Khaoya & 3 other [2020] KEELC 2019 (KLR)

Environment and Land Court
14 May 2020
2,724 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to let defendants call a witness years late, warning that unexplained delay and late evidence amount to an unfair ambush.

What this practically means

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Executive summary

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This is an interlocutory ruling by Mwangi Njoroge J of the Environment and Land Court at Nairobi, delivered by teleconference on 14 May 2020 in a nine-year-old land suit. On 11 March 2020, counsel for the 2nd defendant made an oral application for leave to call Esther Chebet as a witness and file her witness statement after the plaintiff's case had closed and the 4th defendant had testified; counsel for the 1st defendant, who had listed Chebet as a witness in 2011 but never filed her signed statement, sought the same relief in a supplementary application. The plaintiff and the 4th defendant opposed, citing closed pleadings and prejudice. The court reviewed Order 3 Rule 2, Order 7 Rule 5 and Order 11 of the Civil Procedure Rules, whose purpose it identified as averting trials by ambush, and applied the Supreme Court's dicta in Raila Odinga v IEBC on assessing the nature and magnitude of late evidence, together with Munyao J's decision in Johana Kipkemei Too v Hellen Tum and Nyakundi J's decision in Pinnacle Projects Ltd v PCEA, the latter distinguished. Holding that the oral applications exhibited no draft statement enabling the court or the plaintiff to gauge the prejudice, that the delay of eight years was unexplained, and that litigation must come to an end, the judge declined both applications and directed that hearing proceed on the witness statements on record. No costs order was made.

Key legal issues

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01

Discretion to allow a witness and statement to be introduced after the plaintiff's case is closed

Holding

The discretion exists but was declined on these facts because the application was oral, made without any draft statement, unexplained in origin, and came after inordinate delay in a nine-year-old case

Reasoning

The court traced the Civil Procedure Rules regime under Orders 3 and 7 requiring witness statements at filing, with late filing only by leave and at least 15 days before the pre-trial conference. It adopted the Supreme Court's guidance in the Raila Odinga case that the nature, context and magnitude of the new material must be weighed. The defendants made oral applications without exhibiting any draft statement, so the court could not gauge the prejudice to the plaintiff, and eight years of unexplained delay weighed against granting leave.

p. 5
02

Fair hearing under Article 50(1) as between avoiding ambush and the right to be heard

Holding

Allowing the late evidence would amount to ambush and would impliedly vacate the plaintiff's Article 50(1) protection to a fair and impartial hearing

Reasoning

The court held that the purpose of the Civil Procedure Rules is to avert ambush, and that allowing statements after the plaintiff's case closes may create a lingering sense of unfairness and protract the hearing if the plaintiff seeks to reopen its case. Because the plaintiff closed its case without knowledge of what Esther Chebet's statement might contain, admitting it late would prejudice the plaintiff's right to a fair and impartial hearing under Article 50(1).

p. 5

Legal principles established

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  • There is no hard and fast rule forbidding leave to adduce additional evidence not furnished under the rules; such applications must be considered case by case on the prevailing circumstances
  • In deciding whether to allow late evidence the court must consider its nature, context and magnitude and whether the other party can respond effectively
  • Litigation must come to an end and unexplained inordinate delay in seeking to adduce further evidence justifies refusal

Court orders

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  1. 1.The 2nd defendant's oral application for leave to call Esther Chebet as a witness and file her witness statement is declined
  2. 2.The 1st defendant's application to file the witness statement of Esther Chebet is declined
  3. 3.Hearing will proceed on the basis of the witness statements on the record

Authorities

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Legislation

  • Civil Procedure RulesOrder 3 Rule 2
  • Civil Procedure RulesOrder 3 Rule 7
  • Civil Procedure RulesOrder 7 Rule 5
  • Civil Procedure RulesOrder 11 Rule 7
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (3)

  • Johana Kipkemei Too v Hellen Tum
    [2014] eKLR E&L No. 975 of 2012 (Formerly HCC 44 of 2012)
  • Raila Odinga & 5 Others v IEBC & 3 Others
    Petitions Nos. 3, 4 and 5 of 2013 (2013) eKLR
  • Pinnacle Projects Limited v Presbyterian Church Of East Africa, Ngong Parish & Another
    Kajiado Civil Case No. 21 of 2017 [2019] eKLR
Jurisdiction invoked
Inherent discretion of the trial court under the Civil Procedure Rules (Orders 3 and 7) read with Article 50(1) and Article 159(2)(d) of the Constitution

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, "Samwel Kiptoo Rop & another v Beatrice Nakhumicha Khaoya & 3 other [2020] KEELC 2019 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2019/eng@2020-05-14

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