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ELCOtherNot stated in the judgment· [2020] KEELC 2437 (KLR)

Freeman Wafula Watambeko & 3 others v Enos Juma Wabomba [2020] KEELC 2437 (KLR)

Environment and Land Court
27 May 2020
BOBoaz N. Olao
1,467 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court barred a surprise defence witness, ruling that late evidence that ambushes the other side undermines a fair hearing.

What this practically means

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Executive summary

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After the plaintiffs closed their case on 26th February 2020 and the defendant had testified and called five witnesses, defence counsel MR MURUNGA sought leave to call MIKE FWAMBA, the parties' former Chief, to produce a letter he had written concerning the dispute. MR WERE for the plaintiffs objected: the witness had not recorded a statement, was not an expert, had been present in court throughout, and the plaintiffs would be prejudiced. The court noted that neither the witness nor his letter of 7th February 2018 had been listed under Order 3 Rule 2 or Order 7 Rule 5 of the Civil Procedure Rules, and that the parties had never complied with the Order 11 trial conference directions. The court held that while the Rules do not bar late filing of statements for sufficient reasons and absent prejudice, an application made this late in the trial, after the plaintiffs had closed their case, would cause prejudice and amount to trial by ambush contrary to the spirit of Article 50(1) of the Constitution. The objection was upheld and MIKE FWAMBA was barred from testifying. Applying the Court of Appeal's decision in Prafulla Enterprises Ltd v Norlake Investments Ltd, the court held that documents do not prove their own contents; since the letter's author would not testify and the plaintiffs objected to its production, the letter was expunged from the record. The ruling was delivered by electronic mail on 27th May 2020 owing to COVID-19 restrictions. No costs order was made.

Key legal issues

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01

Whether a party may introduce a new witness and document late in the trial after the other side has closed its case

Holding

The application was refused; the witness was neither listed nor did he record a statement, and the plaintiffs would be prejudiced

Reasoning

The Civil Procedure Rules require advance disclosure of witnesses, statements and documents to prevent trial by ambush. While courts retain discretion to allow late statements for sufficient reasons where no prejudice results, here the plaintiffs had already testified and closed their case without knowing what the proposed witness would say. Article 50(1) guarantees a fair hearing to both sides and requires a level playing field; allowing the witness would take the plaintiffs by surprise and negate that guarantee.

p. 2
02

Whether a document filed in the defendant's list of documents can be proved without calling its maker

Holding

No; the letter cannot be admitted without its author testifying and being cross-examined, and it was expunged

Reasoning

Following the Court of Appeal in Prafulla Enterprises Ltd v Norlake Investments Ltd, production of documents by consent only places their contents in controversy; proof of contents requires witnesses to be produced, examined and cross-examined unless the parties categorically admit the contents. Since the trial conference under Order 11 was never held and the plaintiffs objected, and since the author was barred from testifying, the letter had to be expunged.

p. 2

Legal principles established

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  • Courts may allow late filing of witness statements for sufficient reasons, provided there is a good explanation and no prejudice to the other side
  • Late-stage introduction of new witnesses and documents during trial is improper where it would prejudice the opposing party who has closed their case
  • Documents filed by consent are not proof of their contents; their makers must be called and cross-examined unless the parties admit the contents

Court orders

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  1. 1.The objection raised by MR WERE on 26th February 2020 is upheld
  2. 2.MIKE FWAMBA will not be permitted to testify on behalf of the defendant
  3. 3.The letter dated 8th February 2018 and authored by the said MIKE FWAMBA will be expunged from the record herein
Jurisdiction invoked
Original civil suit jurisdiction of the Environment and Land Court; procedural jurisdiction under the Civil Procedure Rules (Orders 3, 7 and 11) and Article 50(1) 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, "Freeman Wafula Watambeko & 3 others v Enos Juma Wabomba [2020] KEELC 2437 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2437/eng@2020-05-27

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