Chumba & another v Lelei & another (Environment & Land Case E005 of 2022) [2024] KEELC 7019 (KLR)
The bottom line
#Kenya's High Court allowed a defendant to file a witness statement mid-trial because it matched his affidavits already on record and no one was prejudiced.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to file a witness statement mid-trial causes prejudice and to whom
No prejudice to the Plaintiffs arises because the statement mirrors affidavits already on record and the evidence will be tested by cross-examination; refusal would prejudice the Defendant who would be unable to defend his case.
The court distinguished the authorities relied on by the Plaintiffs, noting both Sendy Kenya Freight and the Raila Odinga decision concerned introduction of additional evidence and witnesses, whereas here the proposed testimony is the party's own and its substance already exists in affidavit form within the party's knowledge. The court balanced the Plaintiffs' notice interest against the Defendant's constitutional right to be heard, and allowed the statement subject to conditions confining it to matters already pleaded in the affidavits, immediate service, and liberty to call rebuttal evidence.
Whether Order 7 Rule 5 CPR bars late filing of witness statements in an Order 37 Originating Summons suit
Order 7 Rule 5 applies only to suits commenced by plaint; in an Originating Summons suit, directions for conversion of a Replying Affidavit into a defence issue under Order 37, so the rule does not disentitle the Defendant.
The court accepted that the submission about Order 7 Rule 5 was textually accurate but held it inapplicable because the suit was commenced by Originating Summons under Order 37, under which directions for conversion of the Replying Affidavit into a defence are issued. The Defendant's affidavit evidence was already before the court, so the absence of a separately filed witness statement did not offend the procedural scheme governing plenary suits.
Legal principles established
#- Order 7 Rule 5 requirements on accompanying witness statements apply to suits filed by plaint, not suits commenced by Originating Summons under Order 37
- Article 50 of the Constitution grants parties a right to fair hearing, and a Defendant who has filed a Defence and documents has a legitimate expectation to be heard on them
- No prejudice arises where the proposed testimony merely mirrors affidavits already on record and remains subject to cross-examination
Court orders
#- 1.The application is allowed and the 1st Defendant is permitted to file a witness statement
- 2.The witness statement shall contain only the issues raised in the previous affidavits filed by the Defendant, with Plaintiffs' Counsel at liberty to object to any new issues introduced
- 3.The statement shall be served on the parties forthwith so as to prepare for the witness to be heard at a later date
- 4.The Plaintiffs shall be at liberty to call a rebuttal witness and/or evidence at the next hearing if they consider it necessary
- Jurisdiction invoked
- Inherent discretion of the trial court; Article 50 of the Constitution (right to fair hearing); suit commenced by Originating Summons under Order 37 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chumba & another v Lelei & another (Environment & Land Case E005 of 2022) [2024] KEELC 7019 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7019/eng@2024-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.