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ELCAllowedNot stated in judgment· [2024] KEELC 4535 (KLR)

Chemaiyo v Ossiefuna Construction Company Limited (Environment and Land Appeal E026 of 2022) [2024] KEELC 4535 (KLR)

High Court of Kenya
10 June 2024
1,902 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court ruled that striking out late-filed documents is not a valid preliminary objection, restoring the appellants' evidence and restarting the trial before a new magistrate.

What this practically means

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Executive summary

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The parties jointly purchased shares in L.R No. 3974 (905 acres) owned by Kamukono Farm Limited, each share of Kshs.1,600 equating to 20 acres. The Appellants claimed their parcels were substantially reduced during survey in favour of some Respondents. At the hearing in the lower court, the Respondents filed a preliminary objection seeking to strike out the Appellants' List of Documents, attached documents and witness statements on the ground that they were filed out of time and without leave, contrary to Order 7 rule 5 of the Civil Procedure Rules. The trial magistrate upheld the objection on 2nd September 2022 and expunged the documents, but gave no directions on the fate of proceedings already conducted on them. On appeal, J. M. Onyango J framed four issues. Relying on Mukisa Biscuits, Aviation & Allied Workers Union, Mwalungu Mwambui Nyiyo and Attorney General v Andrew Mwaura Githinji, the court held that the objection was not a pure point of law: it required the court to ascertain when the documents were filed, whether leave had been granted, and to exercise discretion to expunge them. Further, the objection was filed three months after the documents and after witnesses had testified and been cross-examined, so it was overtaken by events and would not dispose of the suit. The court found sufficient reasons to interfere, allowed the appeal, set aside the ruling and orders of 2nd September 2022, directed the trial to proceed from where it had reached before a different magistrate, and awarded the Appellants the costs of the appeal.

Key legal issues

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01

Whether the objection to documents filed out of time was a valid preliminary objection

Holding

No. It required the court to ascertain facts and exercise discretion to expunge documents, so it was not a pure point of law.

Reasoning

The objection required the court to confirm when the impugned documents were filed, whether leave had been granted, and to peruse the proceedings before deciding whether to expunge them. Because such fact-finding and the exercise of judicial discretion were involved, the objection failed the Mukisa Biscuits threshold and the trial magistrate ought not to have entertained it.

p. 4
02

Whether the preliminary objection was overtaken by events

Holding

Yes. It was filed three months after the documents were filed and after witnesses had testified and been cross-examined on them.

Reasoning

The preliminary objection was lodged more than three months after the impugned documents were filed, by which time the plaintiff and his two witnesses as well as the defendant had testified, and the respondents' counsel had cross-examined the appellants' witnesses on the documents. The court found the objection ill-timed and overtaken by events, and also noted the futility of expunging documents while retaining evidence referring to them.

p. 4

Legal principles established

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  • A preliminary objection must be a pure point of law, argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained or where judicial discretion is sought.
  • An objection inviting the court to exercise its discretion to expunge documents filed out of time does not meet the threshold of a preliminary objection and should not be entertained.

Court orders

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  1. 1.Appeal allowed
  2. 2.The Ruling and orders issued on 2nd September, 2022 set aside
  3. 3.The trial in the lower court to proceed from where it had reached before a different magistrate
  4. 4.Costs of the Appeal to be borne by the Respondent

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 7 rule 5(b), (c) and (d)

Cases cited (4)

  • Mukhisa Biscuits Manufacturers Ltd vs West End Distributors Ltd
    (1969) EA 696
  • Mwalungu Mwambui Nyiyo & 201 others v Total Oil Products (East Africa) Limited & another
    (2021) eKLR
  • Attorney General & Another vs Andrew Mwaura Githinji & another
    [2016] eKLR
  • Aviation & Allied Workers Union Kenya vs Kenya Airways Limited & 3 others
    [2015] eKLR
On appeal from
Magistrates' Court (trial court not named in judgment)
not stated
Jurisdiction invoked
First appellate jurisdiction over the magistrates' court (constitutional/statutory basis not expressly cited in the judgment)

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, "Chemaiyo v Ossiefuna Construction Company Limited (Environment and Land Appeal E026 of 2022) [2024] KEELC 4535 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4535/eng@2024-06-10

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