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ELCDismissed· [2022] KEELC 1485 (KLR)

Silvance Odhiambo Abayo v Martin Onyango Rege [2022] KEELC 1485 (KLR)

Environment and Land Court of Kenya
27 January 2022
GOG.M.A Ong'ondo
258 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed late-filed witness statements, ruling that a fair hearing matters more than strict procedural deadlines.

What this practically means

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Executive summary

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This short interlocutory ruling of the Environment and Land Court at Homa Bay, delivered by G.M.A Ong'ondo J on 27 January 2022, dealt with an application by the plaintiff's counsel objecting to the admission of two witnesses' statements filed and served by the defendant's counsel, seeking that they be expunged from the record and that the defendant's case be deemed duly closed. The plaintiff's counsel complained of delay in service of the statements. The defendant's counsel, Mr Kisia, explained that the suit had earlier been dismissed and reinstated after he came on record, attributing the lapse to a mistake of the counsel from whom he took over the matter, and urged that the defendant should not be condemned unheard. The court considered the history and nature of the suit and invoked Articles 159(2)(d) and 159(2)(b) of the Constitution, which require justice to be administered without undue regard to procedural technicalities and without delay, as well as Articles 48, 50(1) and 25(c) on access to justice and the right to a fair hearing. Guided by the decision in Philip Chemwolo and another v Augustine Kubende (1986) eKLR, the judge found the plaintiff's prayer unmeritorious and disallowed the application, ordering that the defendant's witnesses' statements be presented in evidence to meet the ends of justice and that the defendant's case proceed without delay. No costs order was made.

Key legal issues

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01

Admissibility of late-filed witness statements and the right to a fair hearing

Holding

The plaintiff's application to expunge the defendant's witnesses' statements was disallowed; the statements were admitted and the defendant's case allowed to proceed

Reasoning

The court considered the history and nature of the suit, which had earlier been dismissed and reinstated after counsel came on record, and attributed the lapse partly to mistake of counsel. Invoking Article 159(2)(d) on procedural technicalities and Articles 48, 50(1) and 25(c) on access to and the right to a fair hearing, and guided by Philip Chemwolo v Augustine Kubende, the court held that substantive justice required admitting the statements rather than condemning the defendant unheard.

p. 1

Legal principles established

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  • Justice is administered without undue regard to procedural technicalities, and a party should not be condemned unheard on account of a mistake or delay in filing process where the interests of justice favour admission

Court orders

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  1. 1.The plaintiff's application to expunge the defendant's witnesses' statements is disallowed
  2. 2.The defendant's witnesses' statements be presented in evidence to meet the ends of justice
  3. 3.The defendant's case to proceed without delay

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(b)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 25(c)

Cases cited (1)

  • Philip Chemwolo and another versus Augustine Kubende
    (1986) eKLR
Jurisdiction invoked
Articles 48, 50(1) and 25(c) of the Constitution of Kenya, 2010

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, "Silvance Odhiambo Abayo v Martin Onyango Rege [2022] KEELC 1485 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1485/eng@2022-01-27

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