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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 3935 (KLR)

Simandi Investments Limited v Macharia & 2 others (Environment and Land Case Civil Suit 1035 of 2016) [2025] KEELC 3935 (KLR)

Environment and Land Court
22 May 2025
OAO. A. Angote
1,570 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court removed affidavits filed instead of witness statements but let the party file proper statements within 21 days.

What this practically means

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Executive summary

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The Plaintiff filed a Notice of Objection dated 2nd May 2025 under Sections 1A, 1B and 3A of the Civil Procedure Act seeking the expungement of two witness affidavits sworn by Gordon Okumu Wayumba (14th November 2016) and Meshack Okumu (15th November 2016), on the ground that they offended Order 19 Rules 1 and 2 of the Civil Procedure Rules. The Plaintiff argued that affidavits are confined to interlocutory applications and that trial evidence must be tendered through witness statements unless leave is granted, which was never sought or given. The 1st Defendant opposed, pointing out that the affidavits were filed in 2016, responded to a disputed deed plan, had already featured in rulings, formed part of her bundle of documents filed without objection, and that the deponents are crucial witnesses who would be called to testify viva voce. The court identified a single issue: whether the affidavits should be expunged. It held that the general rule is that trial evidence is adduced by witness statements (Order 3 Rule 2 and Order 7 Rule 5), and affidavit evidence at hearing is governed by Order 19 Rules 1 and 2. Since the 1st Defendant intends to call both deponents as witnesses 2 and 3, the proviso to Order 19 Rule 1 prohibiting affidavit evidence from available deponents was triggered, and no Order 19 Rule 2 application had been made. Applying Kenneth Nyaga Mwige vs Austin Kiguta, the court held that mere filing does not confer admissibility. The affidavits were expunged from the trial bundle, but invoking Article 159(2)(d) and the overriding objective, the 1st Defendant was granted 21 days to file and serve signed witness statements of the two deponents. Costs of the objection were ordered to abide the outcome of the suit. Judgment delivered virtually in Nairobi on 22nd May 2025 by O. A. Angote, Judge.

Key legal issues

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Whether affidavits of witnesses intended to be called at trial should be expunged for non-compliance with Order 19 Rules 1 and 2 of the Civil Procedure Rules

Holding

The affidavits were expunged because the deponents were available to testify and no application had been made for their evidence to be given by affidavit; however, leave was granted to file proper witness statements

Reasoning

Order 3 Rule 2 and Order 7 Rule 5 require witness statements to accompany pleadings, while Order 19 Rules 1 and 2 confine affidavit evidence to cases of sufficient reason, subject to a proviso barring affidavit evidence where a deponent is available for cross-examination. Since the 1st Defendant intended to call the deponents as witnesses 2 and 3, the proviso was triggered and no Order 19 Rule 2 application existed. Filing alone confers no admissibility. Yet Article 159(2)(d) and the overriding objective justified leave to file witness statements rather than total exclusion.

p. 3

Legal principles established

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  • The general rule in civil proceedings is that evidence at trial is adduced through witness statements; affidavits may only be used at hearing where the court, for sufficient reason, so orders under Order 19 Rules 1 and 2
  • Mere filing of a document does not render it admissible in evidence

Court orders

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  1. 1.The affidavits of Gordon Okumu Wayumba sworn on the 14th November, 2016 and Meshack Okumu sworn on the 15th November, 2016, to the extent they form part of the 1st Defendant's trial bundle, are expunged from the record
  2. 2.The 1st Defendant shall within 21 days hereof file and serve witness statements of Gordon Okumu Wayumba and Meshack Okumu
  3. 3.The costs of the objection to abide the outcome of the suit
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21; Section 3 of the Environment and Land Court Act

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, "Simandi Investments Limited v Macharia & 2 others (Environment and Land Case Civil Suit 1035 of 2016) [2025] KEELC 3935 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3935/eng@2025-05-22

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