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ELCDismissedNot stated in judgment· [2022] KEELC 3196 (KLR)

Koilel & 47 others v Ntiyia & 2 others (Environment & Land Case 47 of 2019) [2022] KEELC 3196 (KLR)

Environment and Land Court
12 May 2022
CMC.G Mbogo
1,391 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to let a party swap witness statements after testifying, reinforcing that evidence must be shared with opponents well before trial.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated January 25, 2022 by the 1st plaintiff, Mosoito Ole Koilel, brought under order 51 rule 1 of the Civil Procedure Rules and section 3A of the Civil Procedure Act. He sought leave to expunge the plaintiff's witness statement filed on September 18, 2019 and to file fresh witness statements before the hearing scheduled for January 31, 2022, contending the earlier statements were incorrect and that refusing the orders would cause irreparable loss. The 3rd defendant filed grounds of opposition, noting the plaintiffs' witnesses had testified and closed their case and that the plaintiffs had not cited any legal basis for expungement. The 1st and 2nd defendants opposed, relying on Francis Githinji Karobia v Stephen Kageni Gitau. The court framed a single issue: whether the plaintiffs could introduce new witness statements and expunge the old one at that stage. Relying on orders 3 and 11 of the Civil Procedure Rules, Mbogo J held that evidence must be furnished in advance to curb trials by ambush, and that the court retains a constitutional power under Article 50(1) to disallow undisclosed evidence. The fresh statements were not even on record for the court to assess. The plaintiffs had testified knowing their statements were incorrect, had ample time to amend before closure of pleadings, and the order of March 16, 2021 permitting recall of witnesses did not permit filing documents. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether new witness statements may be introduced after the plaintiffs' case has closed

Holding

No. The rules require evidence to be furnished in advance, and a party who testified on statements it knew to be incorrect cannot seek to substitute new statements after closing its case.

Reasoning

The court held that evidence must be filed with pleadings under order 3 rule 2, with late filing only by leave at least 15 days before the trial conference. The plaintiffs had already testified and closed their case; both parties had confirmed compliance with order 11 on September 21, 2020, which was the proper time to seek such leave. The March 16, 2021 order permitting recall of witnesses did not open the door to filing new documents. Allowing the application would enable trials by ambush contrary to Article 50(1).

p. 3

Legal principles established

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  • Parties must furnish their evidence in advance of trial under orders 3 and 11 of the Civil Procedure Rules; written statements may only be availed later with leave of the court, at least 15 days before the trial conference
  • The court retains a constitutional power to disallow evidence not disclosed to the other party, in furtherance of the right to a fair trial under Article 50(1)

Court orders

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  1. 1.The Notice of Motion application dated January 25, 2022 is dismissed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 rule 1
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 3 rule 2
  • Civil Procedure RulesOrder 11
  • Constitution of KenyaArticle 50(1)

Cases cited (2)

  • Francis Githinji Karobia versus Stephen Kageni Gitau
    [2014] eKLR
  • Raila Odinga & 5 others vs IEBC & 3 others
    Supreme Court of Kenya, Petitions Nos. 3,4 and 5 of 2013 (2013) eKLR
Jurisdiction invoked
Order 51 rule 1 of the Civil Procedure Rules and section 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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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, "Koilel & 47 others v Ntiyia & 2 others (Environment & Land Case 47 of 2019) [2022] KEELC 3196 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3196/eng@2022-05-12

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