Mbithi v Mureithi & another; Nairobi City County (Interested Party) (Environment & Land Case 346 of 2019) [2024] KEELC 3448 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to let an interested party file evidence late, ruling that blaming an inactive advocate is no excuse.
What this practically means
#Executive summary
#Key legal issues
#Whether the Interested Party should be granted leave to file its witness statement and documents out of time after the Plaintiff had testified
The application was dismissed. The Interested Party had repeatedly stated it would not file documents, had waived its opportunities to comply, failed to give a bona fide explanation for the delay, and granting leave would prejudice the Plaintiff by fundamentally altering the case after he had testified.
The court traced the record showing the Interested Party was always represented by counsel, sought time to comply with Order 11, then repeatedly indicated it would not file documents or call a witness. Blaming the advocate was mere inaction, not a bona fide mistake, and the applicant showed no tangible steps to follow up. Admitting new evidence would ambush the Plaintiff, who was not cross-examined on it, violating Article 50(1).
Whether an Interested Party may introduce new evidence and issues at trial
An interested party may not frame fresh issues or introduce new issues; the issues remain those of the primary parties, so allowing the documents would improperly alter the nature of the suit.
Relying on the Supreme Court's guidance in Muruatetu, the court held that the overriding interest in any matter is that of the primary parties and a third party's stake cannot take the form of a new issue. Allowing the Interested Party to file documents altering the suit would amount to introducing new issues not framed by the principal parties.
Legal principles established
#- Inaction on the part of an advocate, as opposed to an error of judgment or a slip, is not excusable and cannot amount to a mistake which ought not to be visited on the client.
- An Interested Party may not introduce new issues or evidence that alters the nature of the suit as framed by the primary parties.
- There is no provision in the Civil Procedure Rules permitting a list of witnesses or documents to be filed outside the timelines in Order 3 Rule 7 and Order 7 Rule 5, and a trial will not be fair if a party is allowed to ambush the other with hidden evidence.
Court orders
#- 1.The application by the Interested Party dated 2nd February, 2024 is disallowed and dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Inherent jurisdiction under Article 159(2)(d) of the Constitution read with the Civil Procedure Rules (Order 3 Rule 7 and Order 7 Rule 5)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbithi v Mureithi & another; Nairobi City County (Interested Party) (Environment & Land Case 346 of 2019) [2024] KEELC 3448 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3448/eng@2024-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.