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ELCPartially AllowedApplication dated 5/6/2023 in the principal suit (suit land: Thika Municipality Block 38/247)· [2024] KEELC 776 (KLR)

Gachao (Suing on her own Behalf, and on Behalf of the Estate of Frank P. Kinya Kioni – Deceased) v Mwangi & 3 others (Enviromental and Land Originating Summons 11 of 2022) [2024] KEELC 776 (KLR)

Environment and Land Court
16 February 2024
GJG Kemei J
946 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court allowed late witness statements because the opponent couldn't show real prejudice — deadlines matter, but fairness wins when no one is actually harmed.

What this practically means

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Executive summary

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By an application dated 5/6/2023, the Plaintiff/Applicant, Emma Waithira Gachao, sued on behalf of her late husband Frank P. Kinya over the suit property Thika Municipality Block 38/247. She sought setting aside of the urgency certification orders of 16/8/22, leave to file two additional witness statements (of Geofirey Nyaga Njeru and Daniel Kibathi Karuita), and costs. She explained that her pleadings had wrongly named David Nduati Kigochi as the seller, when her late husband had actually purchased the land in 2009 from Patrick Gitonga Njoki, and that a crucial witness had been out of the country when the suit was filed. The 2nd Defendant/Respondent opposed through grounds of opposition, terming the application mischievous, frivolous and an afterthought, and asserting she would suffer substantial prejudice. Directions were given for written submissions, but only the Applicant filed. The court, applying Order 3 rule 2 of the Civil Procedure Rules and section 95 of the Civil Procedure Act, held that the statutory 15-day timeline for filing witness statements is extendable in the court's discretion, which must be exercised judiciously and guided by Articles 48, 50 and 159(2)(d) of the Constitution. Although the Applicant offered no proof of the witness's absence abroad, the Respondent particularised no prejudice. The application was allowed in terms of prayer (c) only, with liberty given to the Defendant to cross-examine the additional witnesses and to file statements and call further witnesses. No orders as to costs were made because the Respondent did not file submissions as directed.

Key legal issues

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01

Whether leave should be granted to file witness statements outside the timeline fixed by Order 3 rule 2 of the Civil Procedure Rules

Holding

Leave was granted. The 15-day timeline under Order 3 rule 2 is extendable under section 95 of the Civil Procedure Act, and no concrete prejudice was demonstrated by the Respondent.

Reasoning

The court noted that witness statements must ordinarily accompany the suit or be filed at least 15 days before the trial conference, but that this period may be enlarged under section 95 of the Civil Procedure Act. The exercise of that discretion must be judicious, guided by Article 159(2)(d) of the Constitution and the duty to do justice between the parties. Although the Applicant offered no proof that the witness was out of the country, the Respondent also gave no details of the prejudice she would allegedly suffer, so the interests of justice favoured allowing the additional statements.

p. 3

Legal principles established

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  • Extension of time is discretionary and must be exercised judiciously; where evidence can be adduced without undue prejudice to the other party, the court ought to allow it in the interest of a fair hearing

Court orders

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  1. 1.The Application is allowed in terms of prayer No. (c) only, granting leave to file two additional witness statements of Geofirey Nyaga Njeru and Daniel Kibathi Karuita
  2. 2.The Defendant is at liberty to cross-examine the Plaintiff's witnesses and file statements and call additional witnesses if need be
  3. 3.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 3 rule 2
  • Civil Procedure ActSection 95
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159
Jurisdiction invoked
Article 159(2)(d) of the Constitution; Section 95 of the Civil Procedure Act; Order 3 rule 2 of the Civil Procedure Rules

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, "Gachao (Suing on her own Behalf, and on Behalf of the Estate of Frank P. Kinya Kioni – Deceased) v Mwangi & 3 others (Enviromental and Land Originating Summons 11 of 2022) [2024] KEELC 776 (KLR)", Case Analysis (2024). Application dated 5/6/2023 in the principal suit (suit land: Thika Municipality Block 38/247). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/776/eng@2024-02-16

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