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ELCDismissedNot stated in the judgment· [2025] KEELC 7215 (KLR)

Wekesa & 2 others v Simiyu & 2 others (Environment and Land Case 42 of 2019) [2025] KEELC 7215 (KLR)

Environment and Land Court
22 October 2025
1,152 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kitale refused to let a defendant add a new witness after the plaintiffs had closed their case, calling it trial by ambush.

What this practically means

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Executive summary

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In this interlocutory ruling in a land suit at the Environment and Land Court, Kitale, the 1st defendant sought leave to file out of time a witness statement of an additional witness, Noah Kibui, to produce an agreement dated 28/7/2007. The plaintiffs, who had closed their case, opposed, arguing prejudice and trial by ambush. The trial was at the defence stage: the 1st defendant had testified (DW1), and the 3rd defendant had died on 16/12/2024 without substitution. The court noted that Orders 3 and 7 of the Civil Procedure Rules prohibit late filing of witness statements and documents, but that the court retains a discretion under Order 50, Section 95 of the Civil Procedure Act and Article 159(2)(b) of the Constitution to enlarge time where there are good and sufficient reasons and no prejudice to the other side. Applying Marclus Kiranga Nimrod, Wanyama vs Lyani and the eleven Mohamed Abdi Mahamud principles on additional evidence, the court found the applicant had listed the witness from the outset yet never explained the failure to procure a statement since 2019, did not act when the plaintiffs failed to call the witness after closing their case in 2022, and never referred to him when testifying. The court held the application an afterthought not made in good faith, designed to fill lacunae in the defence case and amounting to trial by ambush. The application was rejected and the court declined to reopen the pleadings or admit the fresh evidence. No costs order appears in the ruling.

Key legal issues

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01

Discretion to admit late-filed witness statements and documents

Holding

The court has discretion to allow late filing so long as the opposite party suffers no prejudice and there are good and sufficient reasons for the delay

Reasoning

Orders 3 and 7 of the Civil Procedure Rules prohibit late filing, but enlargement of time is available under Order 50, Section 95 of the Civil Procedure Act and Article 159(2)(b). The court weighed the Mohamed Abdi Mahamud principles: relevance, interest of justice, impact on the result, due diligence, absence of prejudice, and whether the evidence would fill gaps.

p. 2
02

Whether the 1st defendant's application was made in good faith

Holding

The application was an afterthought; the defendant had listed the witness but never explained the failure to procure a statement since 2019, and never referred to the witness when he testified

Reasoning

The defendant had notice when the plaintiffs listed the witness, and should have moved immediately after plaintiffs closed their case in 2022. The witness statement was one page and was aimed at discounting the plaintiffs' version on the two agreements. Allowing it would reopen pleadings at the defence stage and ambush plaintiffs who had closed their case.

p. 3

Legal principles established

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  • A party may be allowed to file documents and witness statements late in a trial depending on the circumstances, including the stage of the trial and the prejudice to the other party
  • Late evidence will not be allowed where it is intended to fill lacunae or gaps in a party's case and amounts to trial by ambush

Court orders

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  1. 1.The application by the 1st defendant for leave to introduce an additional witness statement out of time is rejected
  2. 2.Orders accordingly (the court declines to reopen the pleadings or allow fresh evidence at the defence stage)

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159(2)(b)
  • Civil Procedure ActSection 95
  • Civil Procedure RulesOrders 3 and 7
  • Civil Procedure RulesOrder 7 Rule 5
  • Civil Procedure RulesOrder 50

Cases cited (3)

  • Marclus Kiranga Nimrod & another -vs- Nessy Kuthii Justus & another
    [2017] KEELC 2067 (KLR)
  • Wanyama -vs- Lyani & another
    (Civil Application 163 of 2020) [2023] KECA 1090 (KLR) (22 September 2023) (Ruling)
  • Mohamed Abdi Mahamud -vs- Ahmed Abdullahi Mohamad & 3 others
    [2018] eKLR
Jurisdiction invoked
Article 159(2)(b) of the Constitution read with Sections 95 of the Civil Procedure Act and Orders 3, 7, 49 and 50 of the Civil Procedure Rules (original civil suit jurisdiction of the ELC)

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, "Wekesa & 2 others v Simiyu & 2 others (Environment and Land Case 42 of 2019) [2025] KEELC 7215 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7215/eng@2025-10-22

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