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Naki Investments Company Limited & another v Vekaria & another; Vekaria & another (Plaintiffs to the Counterclaim); Naki Investments Company Limited & 8 others (Defendant to the Counterclaim) (Environment & Land Case E172 of 2023) [2025] KEELC 4528 (KLR)
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·~7 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This interlocutory ruling by the Environment and Land Court at Nairobi (Christine Ochieng, J) determined the Plaintiffs' Notice of Motion dated 11 March 2025 seeking leave to file and serve additional witness statements and a list of witnesses after closure of pleadings and the pre-trial conference, but before the suit was set down for hearing. The Plaintiffs intended to call Bernard Kiplagat Kilele, Janet Okanga and a document examiner, explaining that the intended witnesses had not executed their statements in time for pre-trial directions. The 1st and 2nd Defendants opposed, asserting the witnesses had been available to the Plaintiffs since 2023 (Kilele having sworn an affidavit in June 2023 and a statutory declaration in October 2023), that the application was made inordinately late without explanation, and that introducing an unserved expert report would amount to trial by ambush. The 3rd, 4th and 5th Defendants in the Counterclaim filed grounds of objection on similar grounds. The court framed a single issue: whether leave should be granted. Relying on Order 3 Rule 2 and Order 50 rule 6 of the Civil Procedure Rules, Article 159(2)(b) and (d) of the Constitution, the Salat extension-of-time principles and the Kanyarkwat decision, the court found the Plaintiffs' explanation for delay plausible, held the defendants had not demonstrated prejudice since the suit was not set down for hearing and the witnesses could be cross-examined, and allowed the application. The Plaintiffs were directed to file and serve the further list of witnesses and statements within seven days, with the defendants allowed fourteen days to file further statements and documents, and each party was to bear their own costs.
Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the Plaintiffs should be granted leave to file and serve additional witness statements and list of witnesses
Key legal issues
#01
Whether leave should be granted to file additional witness statements and list of witnesses after close of pleadings and pre-trial conference
Holding
Leave was granted; the court found the explanation for delay plausible and no prejudice demonstrated since the suit was not yet set down for hearing.
Reasoning
The court applied Order 3 Rule 2 and Order 50 rule 6 of the Civil Procedure Rules together with Article 159(2)(d) of the Constitution. Adopting the Salat principles and Kanyarkwat, it weighed delay, explanation and prejudice. It found the delay explained by the late signing of the statements, and that the defendants would suffer no prejudice as they could cross-examine the witnesses and were given fourteen days to file further statements.
p. 5
Legal principles established
#- Extension of time is an equitable remedy available only to a deserving party at the discretion of the court, and the applicant bears the burden of explaining delay and absence of prejudice.
- Leave to introduce additional witness statements after pre-trial is not automatic; the applicant must show the evidence could not with due diligence have been obtained earlier.
Court orders
#- 1.Leave granted to the Plaintiffs to file and serve additional witness statements and list of witnesses
- 2.Draft witness statements deemed as duly filed and proper on record
- 3.Plaintiffs to file and serve the Further list of witnesses including witness statements within seven (7) days from the date of the ruling
- 4.Defendants at liberty to file further witness statements and documents if need be within fourteen (14) days
The bench
#One judgment of the whole court — no separate or dissenting opinions.
majority
Wrote the judgment
- Jurisdiction invoked
- Article 159(2)(b) and (d) of the Constitution; Order 3 Rule 2 and Order 50 rule 6 of the Civil Procedure Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I find the instant Notice of Motion application merited and will allow it. I direct the Plaintifis to file a serve the Further list of witnesses including witness statements within seven (7) days, from the date hereof, after which the Defendants can file further witness statements and documents if need be in fourteen (14) days.
Order 50 of the Civil Procedure Rules allows for enlargement of time, while Article 159 (2) (d) of the Constitution expects courts to administer justice without undue regard to procedural technicality.
Despite the fact that the Defendants have opposed granting of leave to file list of witnesses and witness statements, I opine that they have failed to demonstrate what prejudice they stand to sufier
Each party to bear their own costs.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wanderi v Nganga (Environment and Land Appeal E043 of 2024) [2025] KEELC 5005 (KLR)[2025] KEELC 5005 (KLR)4 Jul 2025applied
Cite this brief
#Cite this brief
Caselaw, "Naki Investments Company Limited & another v Vekaria & another; Vekaria & another (Plaintiffs to the Counterclaim); Naki Investments Company Limited & 8 others (Defendant to the Counterclaim) (Environment & Land Case E172 of 2023) [2025] KEELC 4528 (KLR)", Case Analysis (2025). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4528/eng@2025-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.