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ELCStruck Out· [2025] KEELC 8038 (KLR)

Vivo Energy Kenya limited (Formerly known as Kenya Shell Limited) v Gamasil Company Limited (Environment and Land Case 101 of 2019) [2025] KEELC 8038 (KLR)

Environment and Land Court
20 November 2025
CYC.K. Yano
1,912 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan land court struck out a late application to summon witnesses because it missed a mandatory deadline, stressing that procedural timelines must be followed.

What this practically means

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Executive summary

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The Defendant/Applicant filed a Notice of Motion dated 16th July 2025 seeking witness summons for Polycarp Igathe, Paul Muema and Peter Murungi, officers of the Plaintiff, to be examined on the veracity of a lease agreement between the parties and the circumstances of its forfeiture. The application, supported by an affidavit of Gamaliel Lilan, a director of the defendant, was premised on Order 16 Rule 1 of the Civil Procedure Rules. The plaintiff opposed through Grounds of Opposition dated 5th August 2025, contending that the application breached the mandatory timelines of Order 16 Rule 1 since the suit had been certified ready for hearing on 11.08.2021, that no basis was laid for the summons, and that the orders would violate the plaintiff's right to a fair trial in an adversarial system. The court framed three issues: competence and jurisdiction, whether the orders were merited, and costs. On the court record, the suit had indeed been certified ready for hearing by the Deputy Registrar on 11.08.2021. The court held that under Order 16 Rule 1 such applications must be made before the trial conference; the application was therefore out of time. Order 50 Rule 5 permits enlargement of time, but the applicant neither sought leave nor included such a prayer. Relying on authorities that statutory timelines are mandatory and jurisdictional, the court found itself deprived of jurisdiction and struck out the application with costs to the plaintiff/respondent.

Key legal issues

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01

Competence and jurisdiction of an application for witness summons filed after certification of the suit as ready for hearing

Holding

The application was incompetent; the court was bereft of jurisdiction to entertain it.

Reasoning

Order 16 Rule 1 permits applications for witness summonses only at any time before the trial conference under Order 11. The suit was certified ready for hearing on 11.08.2021, but the application was filed on 16.07.2025. Order 50 Rule 5 allows enlargement of time, but the applicant neither sought nor included a prayer for such leave. Non-compliance with mandatory timelines deprived the court of jurisdiction.

p. 3
02

Costs of the application

Holding

The plaintiff/respondent was entitled to the costs of defending the application.

Reasoning

The general rule is that costs follow the event. Since the application was found to have been filed in contravention of Order 16 Rule 1 and without leave, the defendant bore the costs.

p. 4

Legal principles established

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  • An application to summon witnesses under Order 16 Rule 1 must be made before the trial conference/certification of the matter as ready for hearing under Order 11; non-compliance without enlargement of time under Order 50 Rule 5 deprives the court of jurisdiction.
  • Statutory and rule-prescribed timelines are mandatory and jurisdictional; where a party cannot comply, an appropriate explanation for extension of time must be offered.

Court orders

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  1. 1.The Notice of Motion Application dated 16th July, 2025 is not merited and is hereby struck out with costs to the plaintiff/respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 16 Rule 1
  • Civil Procedure RulesOrder 50 Rule 5
  • Civil Procedure RulesOrder 11

Cases cited (3)

  • Joel Tirop Busienei v David Randichi
    [2016] eKLR
  • Republic v Retirement Benefits Authority & 3 others; Nyakwara (Exparte Applicant)
    [2025] KEHC 4246 (KLR)
  • Sino Hydro Corporation Limited v Tumbo t/a Dominion Yards Auctioneers
    [2022] KEHC 15545 (KLR)
Jurisdiction invoked
Order 16 Rule 1 of the Civil Procedure Rules (summoning of witnesses before trial conference under Order 11)

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, "Vivo Energy Kenya limited (Formerly known as Kenya Shell Limited) v Gamasil Company Limited (Environment and Land Case 101 of 2019) [2025] KEELC 8038 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8038/eng@2025-11-20

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