James Muigai Thungu v County Government of Trans-Nzoia & 2 others [2021] KEELC 845 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to let a defendant add new witnesses after the plaintiff finished testifying, ruling late evidence would make the trial unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether fresh evidence can be introduced after closure of the opposing party's case
The application to adduce further witness statements and call an additional witness after the plaintiff closed his case was dismissed as unmerited
The court held that a fair trial requires that evidence be availed to the adverse party before hearing so both sides stand on level ground. Since the plaintiff had testified and closed his case, allowing the defence to introduce a further witness statement and an unnamed witness would leave the plaintiff with only cross-examination, greatly prejudicing him and rendering the trial unfair under Article 50(1). The defence had failed to file the statements with the defence as Order 7 Rule 5 requires, and had previously obtained adjournments.
Whether the inherent powers and overriding objective under the Civil Procedure Act justify admitting late evidence
Sections 3A, 1A and 1B do not permit the law to be used so as to cause injustice to the other side
The court accepted that the inherent power and overriding objective oblige it to secure the ends of justice, but asked what the justice need in the case was. It concluded that invoking those provisions to permit fresh evidence after the plaintiff closed his case would itself cause injustice. A party who participated in pre-trial directions declaring readiness was taken to know that all its evidence was before the court; the application was therefore an afterthought brought by counsel who that same morning said they were ready to proceed.
Whether a party's failure to cite the law in submissions is fatal to its position
No - the court is deemed to know the law and applies it regardless of what parties cite
Responding to the submission that the plaintiff's opposition was emotional because no legal provision was cited, the court held that the court is enjoined to look at the law regarding the conduct of matters irrespective of parties' submissions, since the court is deemed to know the law. Failure to cite the law is a technicality cured by Article 159(2)(d) of the Constitution. Parties contribute facts and issues; the court supplies the law.
Legal principles established
#- For a fair trial under Article 50(1) of the Constitution, a party must be given the evidence the adverse party relies on in advance of the trial so as to sufficiently prepare; cross-examination alone does not suffice
- Witness statements, lists of witnesses and documents must accompany the defence under Order 7 Rule 5 of the Civil Procedure Rules, or be filed at least 15 days before pre-trial directions under the ELC Practice Directions
- The court applies the law irrespective of whether parties cite it; failure by a party to cite the law in support of an argument is not a ground to rule against that party
Court orders
#- 1.The application for amendment of Mr. Munialo's witness statement and introduction of another witness is dismissed with costs
- 2.In the interest of justice, and because the time was far spent, Mr. Munialo is given time to prepare to testify at the next hearing date
- Jurisdiction invoked
- Inherent powers under Sections 3A, 1A and 1B of the Civil Procedure Act in an original civil suit before the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Muigai Thungu v County Government of Trans-Nzoia & 2 others [2021] KEELC 845 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/845/eng@2021-11-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.