Wekesa & 2 others v Simiyu & 2 others (Environment and Land Case 42 of 2019) [2025] KEELC 7215 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Discretion to admit late-filed witness statements and documents
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
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.
Whether the 1st defendant's application was made in good faith
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
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.
Legal principles established
#- 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
#- 1.The application by the 1st defendant for leave to introduce an additional witness statement out of time is rejected
- 2.Orders accordingly (the court declines to reopen the pleadings or allow fresh evidence at the defence stage)
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.