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ELCOtherNot stated in the judgment· [2024] KEELC 1010 (KLR)

Ngilu & 3 others v Kombo & 18 others (Environment and Land Case Civil Suit E095 of 2022) [2024] KEELC 1010 (KLR)

Environment and Land Court
20 February 2024
LNL. L. Naikuni
2,853 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 ruled that missing witness statements won't get your case thrown out if it's your lawyer's honest mistake and no one is prejudiced.

What this practically means

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Executive summary

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This interlocutory ruling by the Environment and Land Court at Mombasa (L. L. Naikuni, J) addressed a dispute arising immediately after closure of the Plaintiff's case on 14 February 2024. Counsel for the 1st to 19th Defendants sought an adjournment to prepare for the defence case, admitting that no witness statements had been filed as required by Order 7 Rule 5 and Order 11 of the Civil Procedure Rules, 2010. Plaintiff's counsel opposed, contending that the omission was a deliberate disobedience of pre-trial conditions not curable under Article 159(2)(d) of the Constitution, and urged that the Defendants' case be closed. The court framed two issues: whether failure to file witness statements is fatal to a party's right to testify orally, and whether the default may be cured in the interest of substantive justice. Holding that non-filing of witness statements does not lead to striking out of a Defence, and that a mistake of counsel should not be visited on clients, the court invoked the overriding objective (Sections 1A and 1B of the Civil Procedure Act and cognate provisions) and Article 159. Noting the Defendants had filed detailed sworn Replying Affidavits, that the matter involved livelihoods and shelter for numerous families, and that the Plaintiff would suffer no prejudice, the court granted the Defendants 14 days to file witness statements out of time, allowed the Plaintiff a further 7 days and liberty to recall witnesses, set a compliance mention and hearing dates, and warned that default would result in the Defendants' case being deemed closed. No costs order was made.

Key legal issues

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01

Consequence of failure to file witness statements

Holding

The failure to file witness statements and documents does not automatically bar a party from testifying or lead to striking out of the Defence

Reasoning

Order 7 Rule 5 requires a Defence to be accompanied by witness statements and documents, but non-compliance is addressed at the pre-trial stage under Order 11, where a party may seek time to comply. The rules do not prescribe striking out for such default. The court found the Defendants admitted non-compliance but held it curable.

p. 4
02

Whether the default is curable under Article 159(2)(d) and the overriding objective

Holding

Yes; the court invoked the overriding objective and Article 159 to grant leave to file witness statements out of time, with safeguards for the Plaintiff

Reasoning

The court held Article 159 was not meant to aid defaulters, but the case involved livelihoods and shelter, the failure was a bona fide mistake of counsel, and the Plaintiff would suffer no prejudice given the matter had been live since 2020. The court therefore exercised discretion under Section 95 of the Civil Procedure Act and Order 50 Rules 6 and 7.

p. 6

Legal principles established

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  • Failure to file witness statements under Order 7 Rule 5 does not lead to striking out of the Defence; the court may grant leave to file out of time in the interest of substantive justice
  • A mistake of an advocate should not be visited on the client where the interests of justice so dictate

Court orders

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  1. 1.The Defendants granted leave to file and serve witness statements and list of documents out of time within 14 days from the date of the Ruling
  2. 2.The Plaintiff granted leave to file any further documents within 7 days thereafter and at liberty to recall any Plaintiff's witness to counter any new evidence adduced by the Defendant
  3. 3.Matter to be mentioned on 20th March 2024 for compliance and further directions
  4. 4.Further hearing on 29th and 30th April 2024
  5. 5.Failure to adhere to the pre-conditions, the Defendants' case to be deemed closed and directions on written submissions and judgment date to follow

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(1) and (2), Article 159(2)(d)
  • Civil Procedure Act, Cap. 21Sections 1A, 1B, 95
  • Civil Procedure Rules, 2010Orders 7 Rule 5, 7 Rule 11, 11, 11(2)(a)-(d), 18 Rule 10, 37(1) and (2), 50 Rules 6 and 7
  • Environment and Land Court Act No. 19 of 2011Sections 3 and 13
  • Land Registration Act No. 3 of 2012Section 101
  • Land Act No. 6 of 2012Section 150
  • Evidence Act, Cap. 80Section 146 Rule (4)

Cases cited (5)

  • Francis Githinji Karobi –Versus– Stephen Kageni Gitau
    (2014) eKLR
  • Merry Beach Ld. –Versus– Barclays Bank of Kenya Ltd. & Another
    (2014) eKLR
  • Richard Daudi Nzuko & Another –Versus– Rachel Kailu Nzioka & 2 Others
    ELC (Machakos) No. 33 of 2016; 2016 KRL
  • Belinda Mural & 9 Others - Versus – Amos Wainaina
    (1978)
  • Joseph Wekesa Tulula –Versus– Hilda Wanjiru Tulula
    ELC 52/2013
Jurisdiction invoked
Environment and Land Court Act No. 19 of 2011, Sections 3 and 13

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Ngilu & 3 others v Kombo & 18 others (Environment and Land Case Civil Suit E095 of 2022) [2024] KEELC 1010 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1010/eng@2024-02-20

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