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ELCDismissedNot stated on judgment face· [2024] KEELC 1759 (KLR)

Kirioba v Njomo & 9 others (Environment and Land Case Civil Suit 1510 of 2014) [2024] KEELC 1759 (KLR)

Environment and Land Court
9 April 2024
2,271 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused a defendant's late attempt to testify, ruling that filing no defence or witness statement forfeits your chance to be heard.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi (Lucy N. Mbugua, J) delivered on 9 April 2024 on an application by the 7th defendant dated 12.2.2024 seeking to arrest delivery of judgment and to re-open the defence case so he could testify. The plaintiff's case had closed on 5.7.2022, and on 7.2.2024, after the 7th defendant and his advocate failed to appear at the 1.30 pm defence hearing, the court marked the defendants' cases closed and gave a judgment date for 25.4.2024. The 7th defendant claimed he was barred by security guards from entering the court room. The plaintiff opposed, pointing out that the 7th defendant had never filed a defence, witness statement or bundle, nor complied with Order 11 directions of 2.10.2017. The court gave the defendant the benefit of doubt on the access claim but held that his case was unknown when the plaintiff testified on 7.11.2019. Relying on Article 50(1) and 159(2)(b) of the Constitution, sections 1A and 1B of the Civil Procedure Act, Order 11 and the 2014 Practice Directions, and on authorities including IEBC v Mutinda Mule and Konchellah v Sunkuli, the court held that parties are bound by their pleadings, that evidence without a foundational pleading is of no effect, and that a party is entitled only to a reasonable opportunity to be heard. Allowing the testimony would amount to unacceptable trial by ambush. The application dated 12.2.2024 was dismissed with costs to the plaintiff.

Key legal issues

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01

Whether natural justice required the case to be re-opened

Holding

No; the 7th defendant's prolonged inaction over decades meant he drove himself from the seat of justice

Reasoning

The court found that on 7.2.2024 the 7th defendant and his advocate were absent at 1.30 pm when the defence hearing was scheduled, and the case was marked closed. Giving him the benefit of doubt on access, the court still held the overriding objective and Order 11 required evidence to be disclosed upfront. No defence, witness statement or bundle was ever filed or served despite directions of 2.10.2017, so re-opening would amount to trial by ambush.

p. 5
02

Whether the 7th defendant's intended evidence was properly on record

Holding

No; no defence or witness statement was filed or adopted as at 7.11.2019 when the plaintiff testified

Reasoning

The only document filed by the 7th defendant was a memorandum of appearance dated 17.3.2006. The claimed adoption of the 1st defendant's 1997 defence was never made or mentioned before the plaintiff testified, so reliance on it years later was untenable. Without a foundational pleading, any evidence would be of no effect per Konchellah v Sunkuli.

p. 4

Legal principles established

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  • A party is bound by its pleadings; evidence not anchored on a foundational pleading is of no effect
  • A party is entitled only to a reasonable opportunity to be heard, not an unlimited one

Court orders

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  1. 1.The application dated 12.2.2024 is dismissed with costs to the plaintiff

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159(2)(b) and (d)
  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Civil Procedure Rules, 2010Order 11
  • Practice Directions of 25.7.2014 (Gazette Notice No. 5178)Clause 28(a)

Cases cited (8)

  • Martha Wangari Karua vs. IEBC
    Nyeri Civil Appeal No. 1 of 2017
  • Juma Mohamed Mwachini vs. Samuel Hezron Kamunya
  • Nginyanga Kavole v. Mailu Gideon
    [2019] eKLR
  • Mobile Kitale Service Station vs. Mobil Oil Kenya Limited & Another
    [2004] eKLR
  • Virginia Kathambimaingi v Nicholas Mwatika & 2 others
    [2021] eKLR
  • Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 others
    [2014] eKLR
  • Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others
    [2018] eKLR
  • Moschion v Mwangi (Environment & Land Case 350 of 2018)
    [2023] KEELC 17144 (KLR) (27 April 2023) (Ruling)
Jurisdiction invoked
Article 50(1) and 159(2)(b) of the Constitution; Civil Procedure Act and 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, "Kirioba v Njomo & 9 others (Environment and Land Case Civil Suit 1510 of 2014) [2024] KEELC 1759 (KLR)", Case Analysis (2024). Not stated on judgment face. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1759/eng@2024-04-09

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