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ELCAllowedNakuru- ELCLA/E043/2024· [2025] KEELC 5005 (KLR)

Wanderi v Nganga (Environment and Land Appeal E043 of 2024) [2025] KEELC 5005 (KLR)

Environment and Land Court
4 July 2025
MOM. A. Odeny
2,161 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 ruled that a witness cannot be barred from testifying just because their statement was filed late, where both sides already knew about the evidence.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Nakuru against a ruling of Hon. Lina Akoth (SRM) delivered on 29th July 2024 in Nakuru CMELC No. E119 of 2023, an eviction and trespass suit. The trial court had barred the Appellant's third witness, the Area Chief of Kihingo Location, from testifying and producing minutes of a chief's meeting because he had not recorded a witness statement, and ordered the Appellant to either proceed or close her case. The Appellant argued that failure to file a witness statement should not deny a litigant the right to be heard, invoking Articles 50(1) and 159(2) of the Constitution and the overriding objective provisions. The Respondent contended that witness statements are mandatorily required and that the trial court acted judiciously. M. A. Odeny J, guided by the first appellate duty to re-evaluate the record, held that procedural rules are meant to prevent trial by ambush and organise proceedings, not to defeat substantive justice. The witness had been listed, the minutes were in the served bundle of documents, and defence counsel had agreed to production without tendering evidence, so no ambush arose. Allowing the appeal, the court ordered the Appellant to file and serve a witness statement within 14 days for hearing of the case, with each party bearing their own costs.

Key legal issues

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01

Whether a witness may be barred from testifying for failure to file a witness statement

Holding

The trial court erred in denying the Appellant's witness an opportunity to testify; where the witness and documents were disclosed and served, production would not be an ambush and leave may be granted under the overriding objective.

Reasoning

Rules of procedure exist to guide proceedings and prevent trial by ambush, not to defeat substantive justice. The witness was listed, the minutes were in the served bundle of documents, and defence counsel had agreed to production without tendering evidence. The court may grant leave to file witness statements out of time under Order 3 Rule 2 and Order 50 Rule 6 of the Civil Procedure Rules, ensuring the fair hearing guaranteed by Article 50(1).

p. 4

Legal principles established

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  • A party should not be denied an opportunity to testify for failure to file a witness statement where the witness and documents were disclosed and their production would not amount to trial by ambush; the court may grant leave to file statements out of time in the interest of justice.

Court orders

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  1. 1.Appeal allowed
  2. 2.Appellant to file and serve a witness statement within 14 days for hearing of the case
  3. 3.Each party to bear their own costs
On appeal from
Chief Magistrate's Court, Nakuru
CMELC No. E119 of 2023
Jurisdiction invoked
First appellate jurisdiction over the magistrates' court under 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, "Wanderi v Nganga (Environment and Land Appeal E043 of 2024) [2025] KEELC 5005 (KLR)", Case Analysis (2025). Nakuru- ELCLA/E043/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5005/eng@2025-07-04

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