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ELCAllowed· [2025] KEELC 3223 (KLR)

Gachungu (Suing on Her Own Behalf and as Administratix of the Estate of George Gathungu Gitu) v Gathungu & 3 others (Environment & Land Case 114 of 2019) [2025] KEELC 3223 (KLR)

Environment and Land Court
4 April 2025
MMM.D. Mwangi
1,160 words in judgment
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The bottom line

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A Kajiado land court allowed parties to add extra witnesses before trial, confirming Kenyan courts favour full evidence over strict procedure when no one is prejudiced.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kajiado (M.D. Mwangi J) determines a Notice of Motion dated 22nd November 2024 by the 1st, 2nd and 3rd Defendants seeking leave to file an additional list of witnesses and their witness statements, with costs in the cause. The applicants, through the affidavit of Daniel Nuthu, argued that the proposed witnesses, being the 1st Defendant's neighbours, would assist the court establish the true account of the dispute, that the application was made without unreasonable delay, and that no prejudice would befall the Plaintiff. The Plaintiff, Ruth Njeri Gathungu, opposed the application through a replying affidavit sworn 3rd December 2024, describing it as frivolous, an afterthought and made in bad faith. She noted the suit was set for trial on 4th December 2024 and that she had incurred expenses securing her witnesses, including a forensic expert. The court canvassed the application by written submissions and framed a single issue: whether leave to adduce additional witnesses should issue. Relying on Order 7 Rule 5(b) and (c) of the Civil Procedure Rules, Section 1A of the Civil Procedure Act, Section 3(3) of the Environment and Land Court Act, Article 159(2)(d) of the Constitution and Munyao J's decision in Too v Tum, the court held that since trial had not taken off, no prejudice would be suffered. The application was allowed; the Defendants were granted 14 days to file and serve the additional witness list and statements, with reciprocal leave granted to the Plaintiff and 4th Defendant, and costs were ordered to be in the cause.

Key legal issues

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Whether the Defendants should be granted leave to file additional witnesses and witness statements before trial

Holding

Leave granted; the hearing had not taken off and no prejudice would be suffered by the Plaintiff, and justice requires determination without undue regard to technicalities.

Reasoning

Order 7 Rule 5(b) and (c) permits a party, with leave, to furnish witness statements. The overriding objective under Section 1A of the Civil Procedure Act and Section 3(3) of the Environment and Land Court Act favours just, expeditious and proportionate resolution, and Article 159(2)(d) requires justice without undue regard to technicalities. Since trial had not commenced, the plaintiff would suffer no prejudice, and reciprocal leave was given to the plaintiff and 4th Defendant.

p. 3

Legal principles established

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  • A party may, with leave of the court, furnish additional witness statements; where such evidence can be adduced without causing undue prejudice to the other party, the court ought to allow it.

Court orders

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  1. 1.Leave granted to the 1st, 2nd and 3rd Defendants to file and serve an additional list of witnesses together with witness statements within 14 days from the date of the ruling
  2. 2.Leave granted to the Plaintiff and the 4th Defendant to file and serve any additional witness statements, if they so wish, within 14 days after service of the 1st–3rd Defendants' additional list of witnesses and witness statements
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 7 Rule 5(b) and (c)
  • Civil Procedure Act CAP 21Section 1A
  • Environment and Land Court ActSection 3(3)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (1)

  • Too v Tum
    (Environment & Land Case 975 of 2012) [2014] KEELC 512 (KLR) (27 January 2014) (Ruling)
Jurisdiction invoked
Environment and Land Court Act; Civil Procedure Act CAP 21 and Civil Procedure Rules Order 7 Rule 5(b) and (c)

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, "Gachungu (Suing on Her Own Behalf and as Administratix of the Estate of George Gathungu Gitu) v Gathungu & 3 others (Environment & Land Case 114 of 2019) [2025] KEELC 3223 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3223/eng@2025-04-04

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