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ELCDismissedNot stated in judgment· [2022] KEELC 2782 (KLR)

Chabari & 3 others v Muthuri (Environment & Land Case 38 of 2015) [2022] KEELC 2782 (KLR)

Environment and Land Court
6 July 2022
CYC.K Yano
1,214 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was a ruling on an oral interlocutory application made during the further hearing of a part-heard land suit before the Environment and Land Court at Meru. The matter, filed in 2012, had been heard partly by Hon. L.N Mbugua J before transfer; the plaintiffs had closed their case and four defence witnesses had testified. When the matter came before C.K Yano J on 23rd June 2022, the fifth defence witness testified, after which the defendant's advocate orally applied for summons to issue to the Land Registrar Meru and to one Moses N. Mwithimbu, a document examiner, to produce original documents relating to a transfer form dated 22nd September 1976 for parcel No. Nkuene/Ngonyi/400, and an ID card application report dated 8th November 2018. The defendant said the originals could not be found and the witnesses should clear the air on issues arising over the documents. The plaintiffs opposed, arguing the application was an afterthought intended to delay the matter and re-litigate through the back door, since copies of the documents had already been produced as exhibits without objection. The court applied Order 7 Rule 5 of the Civil Procedure Rules, which requires the defence to be accompanied by a list of witnesses and documents, noting that neither the Land Registrar nor the document examiner was listed. Holding that the purpose of advance disclosure is a fair trial, and that the late application was an ambush calculated to fill gaps in evidence, the court disallowed the application and made no orders as to costs.

Key legal issues

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01

Non-disclosure of witnesses under Order 7 Rule 5 of the Civil Procedure Rules

Holding

A party intending to call witnesses, including expert witnesses, must list them in the list of witnesses filed with the pleadings; witnesses not listed cannot be summoned at a late stage of trial

Reasoning

Order 7 Rule 5 requires the defence to be accompanied by a list of witnesses, witness statements (except experts) and copies of documents; Order 3 Rule 2 imposes the same duty on plaintiffs. The Land Registrar and the document examiner were never listed, so the plaintiffs had no idea they would be called. Admitting them late would defeat the purpose of the disclosure rules, which is to ensure a fair trial.

p. 3
02

Whether the late application is an abuse of process

Holding

The application, made after the plaintiffs closed their case and after copies of the documents had been produced without objection, is an afterthought meant to fill gaps in evidence and is disallowed

Reasoning

The matter, filed in 2012, is part-heard; the plaintiffs and their witnesses testified and produced copies of the documents as an exhibit without objection, and the defendant never requested the makers to produce originals. Permitting the summons now would allow re-litigation through the back door and prejudice the plaintiffs, hence the court inclines toward denial.

p. 3

Legal principles established

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  • The court should be slow and cautious in allowing an application to call witnesses not disclosed in a party's list of witnesses, as it is an ambush prejudicial to the other party

Court orders

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  1. 1.The defendant's oral application for summons to issue to the Land Registrar Meru and Moses N. Mwithimbu is disallowed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 7 Rule 5
  • Civil Procedure RulesOrder 3 Rule 2
  • Civil Procedure RulesOrder 11
  • Civil Procedure RulesOrder 4 Rule 1(2)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; Civil Procedure Rules Order 7 Rule 5

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, "Chabari & 3 others v Muthuri (Environment & Land Case 38 of 2015) [2022] KEELC 2782 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2782/eng@2022-07-06

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