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ELCDismissed· [2021] KEELC 57 (KLR)

Virginia Kathambimaingi v Nicholas Mwatika & 2 others [2021] KEELC 57 (KLR)

Environment and Land Court
14 December 2021
ANA. NYUKURI
2,414 words in judgment
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The bottom line

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If you don't object to your opponent's documents at the pretrial conference, a Kenyan court can refuse to hear that objection at trial.

What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Machakos (A. Nyukuri, J) determined an objection raised by counsel for the 1st Defendant against the Plaintiff's production of documents listed as exhibits 15, 16, 17 and 18. Counsel argued the Plaintiff was neither the author nor the addressee of the documents and that only a document's maker may produce it; she sought that the documents be marked and await their authors. Plaintiff's counsel opposed, noting the objection was raised late despite participation in the pretrial conference, at which all documents had been conceded and produced without objection. The court framed a single issue: whether the objection was merited. Reviewing Article 159(2) of the Constitution, Articles 48 and 50, Sections 3 and 19(2) of the Environment and Land Court Act, Sections 1A and 1B of the Civil Procedure Act, Order 11 Rule 3 of the Civil Procedure Rules and Directions 1 and 28 of the court's Practice Directions, the court held that the overriding objective requires objections to document production to be raised at the pretrial conference, and that Direction 28(g) bars such objections at the main hearing. Applying Methuselar Keyah Lubembe v Albina Kipkemoi [2019] eKLR, the court held the 1st Defendant's counsel estopped from raising the objection at trial, dismissed the objection as lacking merit, and awarded costs to the Plaintiff.

Key legal issues

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01

Whether documents not made by or addressed to a party can be objected to at trial when no objection was raised at the pretrial conference

Holding

The objection is not merited; failure to object at the pretrial stage estops a party from objecting at the hearing

Reasoning

The court reasoned that pretrial conferences under Order 11 and Direction 28(g) are the forum for raising objections to production of documents, and that failing to object there precludes objection at trial. This promotes the constitutional and statutory overriding objective of just, expeditious, proportionate and affordable resolution of disputes under Article 159(2), Sections 1A and 1B of the Civil Procedure Act, Section 3 of the ELC Act and the court's Practice Directions.

p. 4
02

Whether insistence that documents be produced by their maker should override expeditious case management

Holding

That position is obsolete when raised belatedly; justice and expediency are achieved together through the inbuilt mechanisms of the Constitution, the ELC Act, the Civil Procedure Act and Rules, and the Practice Directions

Reasoning

The court held that requiring production by the maker is a legitimate right but one that must be exercised timely. Article 159(2)(d) bars undue regard to procedural technicalities, and the pretrial regime provides inbuilt mechanisms ensuring justice, fairness, expediency, affordability and proportionality together, so the objection based on the maker-of-document rule fails.

p. 4

Legal principles established

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  • A party who fails to object to the production of documents at the pretrial conference is estopped from raising such objections during the main hearing.
  • The demand that a document be produced by its maker must be raised at the pretrial stage, not during the main hearing; otherwise it runs contrary to the overriding objective.

Court orders

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  1. 1.Dismissal of the 1st Defendant's objection to the production of the Plaintiff's exhibits 15, 16, 17 and 18
  2. 2.Costs of the objection awarded to the Plaintiff

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 48
  • Environment and Land Court Act, No. 19 of 2011Section 3
  • Environment and Land Court Act, No. 19 of 2011Section 19(2)
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure RulesOrder 11 Rule 3
  • Practice Directions on proceedings in the Environment and Land Court (Gazette Notice No. 5278 of 25th July, 2015)Directions 1 and 28

Cases cited (1)

  • Methuselar Keyah Lubembe vs Albina Kipkemoi
    [2019] eKLR
Jurisdiction invoked
Environment and Land Court Act, No. 19 of 2011 (court exercising first-instance jurisdiction in a land matter)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Virginia Kathambimaingi v Nicholas Mwatika & 2 others [2021] KEELC 57 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/57/eng@2021-12-14

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