Mathare Investments and Properties Limited v Mparo & 5 others (Environment and Land Case E010 of 2024) [2025] KEELC 7787 (KLR)

Environment and Land Court (as inferred from coram; court name not expressly printed)

11 November 2025

MMM.D. MWANGI

1,041 words in judgment

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The bottom line

A Kajiado court refused to let defendants call a surprise witness at trial, but allowed summons to the Registrar of Companies.

What this practically means

Executive summary

At the close of the plaintiff's case and after the first defence witness testified, the defendants' advocate orally applied for witness summons to the Registrar of Companies and to Mr. Jophece Yogo, said to have been the plaintiff company's Company Secretary from 2000. The defendants' case was that the plaintiff company lacked locus standi, had been merely revived for this suit, and that the verifying affidavit and authorising resolution of Joseph Njenga Wainaina were defective. Plaintiff's counsel opposed, calling the application an ambush, an attempt to lift the corporate veil, and a waste of time. The court noted the plaintiff had already closed its case and would have no chance to respond to new evidence. Applying Order 11 of the Civil Procedure Rules and the authority in Interactive Gaming and Lotteries, the court held that trial by ambush is unacceptable. As to Mr. Yogo, the defendants admitted no witness statement had been filed; only a letter of doubtful relevance had been uploaded to the CTS and was not an exhibit. The application to call him was declined for want of explanation or justification, the court adopting Kiage JA's dictum in Salat that rules and timelines cannot be circumvented in the name of substantial justice. However, the application in respect of the Registrar of Companies was allowed, since the Registrar's office is a public office holding public documents and the Registrar had been listed among the defendants' witnesses. Witness summons will issue for the further hearing of the defence case, with the defendants to follow up issuance and service.

Key legal issues

Whether a party may introduce a witness at trial without a filed witness statement

Holding

No - where a party fails to comply with Order 11 and offers no explanation, the court will decline the witness

Reasoning

The plaintiff had closed its case, so new evidence would ambush it. The defendants admitted no witness statement for Mr. Yogo; only an uploaded letter of doubtful relevance, not admitted as an exhibit. Order 11 exists to discourage trial by ambush and ensure equality of arms, and Article 159 does not excuse non-compliance with rules.

p. 2

Whether the Registrar of Companies should be summoned as a defence witness

Holding

Yes - the Registrar's office is a public office holding public documents, and the Registrar was listed among the defendants' witnesses

Reasoning

Unlike Mr. Yogo, the Registrar was listed in the defendants' list of witnesses, and the office holds public documents relevant to the defendants' contention that the plaintiff company lacks locus standi. The court therefore allowed witness summons to issue, with the defendants to follow up service.

p. 3

Legal principles established

Trial by ambush is not acceptable; parties must comply with Order 11 and disclose witnesses and documents in advance
Article 159 and the oxygen principles cannot be invoked to circumvent rules and timelines of procedure

Court orders

1.The application to call Mr. Jophece Yogo as a defence witness is declined for lack of a reasonable explanation or justification
2.Witness summons will issue to the Registrar of Companies to attend as a witness for the defendants on a date to be given for further hearing of the defence case
3.The defendants shall follow up the issuance and service of the witness summons to the Registrar of Companies

Authorities

Legislation

Constitution of KenyaArticle 159
Civil Procedure ActSections 1A and 1B
Civil Procedure RulesOrder 11

Cases cited (3)

Interactive Gaming and Lotteries Limited –vs- Flint East Africa Limited and 2 others
(2013) eKLR
National Bank of Kenya Limited –vs- John Aswani
Nairobi HCCC 171 of 2016
Nicholas Kiptoo Arap Korir Salat –vs- Independent Electoral & Boundaries Commission & 6 others
(2013) eKLR

Jurisdiction invoked: Original civil suit jurisdiction; procedural application under Order 11 of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Mathare Investments and Properties Limited v Mparo & 5 others (Environment and Land Case E010 of 2024) [2025] KEELC 7787 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7787/eng@2025-11-11

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