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ELCAllowedNot stated in the excerpt· [2024] KEELC 7256 (KLR)

Mwangi & 2 others v Kariuki & 16 others (Environment & Land Case 420 of 2018) [2024] KEELC 7256 (KLR)

Environment and Land Court
24 October 2024
604 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed a land buyer to replace a deceased co-witness and file her statement late, because the other side showed no real prejudice.

What this practically means

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Executive summary

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This ruling by A. Omollo, J of the Environment and Land Court at Nairobi, delivered on 24th October 2024, determines an application dated 4th June 2023 by Sarah Wambiro seeking leave to file her witness statement and documents out of time and to testify at the hearing set for 28th September 2023. The Applicant deposed that she and the late Mary Wanjiru Ndung'u jointly bought plot No. 43 Canaan Project, Nairobi in 1996, and that her co-owner died before recording a witness statement. The Defendants opposed through grounds of opposition dated 30th January 2024, contending that the Applicant had not demonstrated the necessity of her addition, that proceedings were too far advanced, and that allowing her to testify would ambush them and occasion a miscarriage of justice. In a further affidavit, the Applicant maintained that the plaintifis had not closed their case and that no specific prejudice was demonstrated. The court held that the application contained no prayer for joinder of a new party; the Applicant was simply replacing a deceased witness whose name had already appeared in a supplementary list of witnesses served on the Defendants in May 2022, so the Defendants were aware of the plot she claims. With the plaintiff's case still open, the court found no prejudice incapable of remedy. The application was granted as prayed, with no orders as to costs; the Applicant was to file and serve her statement and list of documents within 14 days and the matter was set down for further hearing.

Key legal issues

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01

Whether leave should issue for the Applicant to file her witness statement and documents out of time and testify in place of a deceased witness

Holding

Leave was granted; the Applicant was a replacement for a witness already listed and the Defendants would suffer no unremediable prejudice.

Reasoning

The court noted that the plaintifis had not closed their case, that the deceased co-owner Mary Wanjiru Ndung'u appeared in the supplementary list of witnesses served on the Defendants in May 2022, and that the Applicant jointly bought the plot with the deceased. The Defendants were already aware of the plot number claimed, so no new party or claim was being introduced and any prejudice could be remedied.

p. 3
02

Whether the Defendants' grounds of opposition - ambush, delay and disruption of the hearing - warranted refusal

Holding

The grounds did not demonstrate specific, unremediable prejudice.

Reasoning

The Defendants alleged that adding the Applicant at this stage would ambush them, delay proceedings and nullify progress. The court held that the Defendants had not exactly indicated how they would be prejudiced, and that since the plaintiff's case remained open and the witness was a substitution for one already listed, the objections did not outweigh the Applicant's entitlement to be heard.

p. 2

Legal principles established

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  • A proposed witness whose claim was already disclosed to the opposing party through a served supplementary list of witnesses is not a new party and may be admitted in place of a deceased co-witness where no unremediable prejudice is shown.
  • Prejudice capable of being remedied does not justify refusing leave to add or substitute a witness where the plaintiff's case has not closed.

Court orders

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  1. 1.The application dated 4th June, 2023 is granted as prayed with no orders as to costs
  2. 2.The Applicant (Sarah Wambiro) to file and serve the statement and list of documents within 14 days hereof
  3. 3.The matter to be set down for further hearing
Jurisdiction invoked
Inherent powers and case management discretion over an interlocutory application in a suit pending before the Court (specific provision not 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, "Mwangi & 2 others v Kariuki & 16 others (Environment & Land Case 420 of 2018) [2024] KEELC 7256 (KLR)", Case Analysis (2024). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7256/eng@2024-10-24

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