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ELCAllowed· [2026] KEELC 3729 (KLR)

Kalliste Limited v Bendera & 290 others (Environment and Land Case 509 of 2011) [2026] KEELC 3729 (KLR)

Environment and Land Court
17 June 2026
JOJ.O. Olola
1,164 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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By a Notice of Motion dated 28th October 2025, the 77th and 118th to 291st Defendants sought leave to substitute three of their intended witnesses with Franco Musomba, Ngochi Nyongesa, Kitheka Julius and Moses Matete, whose statements were annexed to the application. The application, supported by an affidavit of Franco Musomba (the 63rd Defendant), was premised on the loss of contact with two intended witnesses (Mwavula Moti and Enock Mogeni), the death of Joseph Kitile, and the loss of mental capacity of Manongo Chaga Muroisa, all attributed to the Plaintiff's 14-year delay in prosecuting the suit. Kalliste Limited opposed, asserting that it had already testified and closed its case on 21st July 2025, that the new statements introduced unpleaded issues concerning HCCC No. 226 of 2010 and HCCC No. 514 of 2011 and a consent said to have been recorded therein, and that no death certificate or medical evidence supported the claimed unavailability. Relying on Lee & Another v Mulwa, and the discretion under Order 18 Rule 3 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, the court held that the references to the suits and the consent were not new, having been listed in the Defendants' List of Documents of 9th November 2015 and referenced in a Replying Affidavit of 30th November 2017. Finding no new issues and no substantial prejudice, and noting the Plaintiff would have an opportunity to cross-examine the new witnesses, the court allowed the motion in terms of prayer 'b', with costs in the cause.

Key legal issues

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01

Substitution of witnesses mid-trial

Holding

The court allowed the Defendants to substitute three witnesses because two were lost to them, one was deceased and one had lost mental capacity, and because the new statements raised no new issues.

Reasoning

The court compared the proposed witness statements with those of the earlier intended witnesses and found no new issues were introduced. The suits and consent referenced in the new statements were already listed in the Defendants' List of Documents dated 9th November 2015 and referenced in a Replying Affidavit of 30th November 2017. The Plaintiff failed to demonstrate substantial prejudice, having the opportunity to cross-examine the new witnesses.

p. 7
02

Whether new issues were improperly introduced

Holding

The references to HCCC No. 226 of 2010 and HCCC No. 514 of 2011 and the recorded consent were not entirely new, as they appeared in the Defendants' list of documents and prior affidavit.

Reasoning

The Plaintiff contended the new statements raised unpleaded matters concerning consent in HCCC No. 226 of 2010. The court's perusal of the record showed the Defendants had listed those suits in their List of Documents dated 9th November 2015, and Fr. Gabriel Dolan had made extensive references to them in a Replying Affidavit sworn on 30th November 2017, so the material was already on record.

p. 5

Legal principles established

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  • The court has a wide discretion under Order 18 Rule 3 of the Civil Procedure Rules, coupled with the inherent powers under Section 3A of the Civil Procedure Act, to allow substitution of witnesses where unforeseen circumstances necessitate it and no substantial prejudice is shown.

Court orders

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  1. 1.The Notice of Motion dated 28th October 2025 is allowed in terms of prayer 'b' (leave to substitute the witnesses)
  2. 2.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 18 Rule 3
  • Civil Procedure ActSection 3A

Cases cited (3)

  • Lee & Another (Suing as the legal representative of the Estate of Richard Sednaoni – Deceased) –vs- Mulwa
    Civil Case No. E040, E039 and E041 of 2021 (Ruling) (Consolidated) (2025) KEHC 3180 (KLR) (Civ) (20 February 2025) (Ruling)
  • Lucy Momanyi t/a L. N. Momani & Company Advocates –Vs- Joel Ombati Nyamweya & Power & Lighting Kenya Company Limited
    (2021) KEHC 13248 (KLR)
  • Meera Umoja Kenya Ltd –vs- David Gikaria & Another
    (2020) eKLR
Jurisdiction invoked
Order 18 Rule 3 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act (inherent powers to meet the ends of justice)

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, "Kalliste Limited v Bendera & 290 others (Environment and Land Case 509 of 2011) [2026] KEELC 3729 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3729/eng@2026-06-17

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