Joseph Kingoo Mailu & Maurice I. Makatiani v Jane Huhu, Catherine Huhu & Grace Wanjiru Huhu
The bottom line
#Kenya's Environment and Land Court allowed a party to add a new witness before trial, confirming courts prioritise full evidence over strict filing deadlines.
What this practically means
#Executive summary
#Key legal issues
#Correct legal basis for admitting an additional witness statement
Order 18 rule 9 does not govern filing of additional witness statements for trial; the correct provision is Order 3 Rule 2, which permits late furnishing of a statement with leave of court, read with section 95 of the Civil Procedure Act.
The court noted the motion cited Order 18 rule 9, which deals with evidence taken where a witness is about to leave the jurisdiction or where immediate taking of evidence is justified. That provision does not govern filing of additional witness statements for trial. Order 3 Rule 2 requires plaintiffs to file witness lists and statements with the plaint but permits late furnishing with leave; section 95 empowers the court to enlarge time.
Whether leave should be granted to call a former advocate as a witness
Leave granted. The evidence concerns the pleaded transaction and matters within the witness's personal knowledge; the hearing had not commenced; the defendants, though served, did not oppose and showed no prejudice.
The witness was the plaintiffs' former advocate who ceased acting after the defendants themselves sought his disqualification, describing him as a potential witness. His statement concerns the 1995 sale agreement and related transactions already in dispute. The hearing had not commenced, so defendants could prepare to test the evidence, and no prejudice was demonstrated.
Legal principles established
#- A trial court is not barred from allowing a party, with leave, to introduce witness statements and documents not previously filed and served, the primary duty of the court being to do justice by allowing all relevant evidence.
Court orders
#- 1.The Plaintiffs shall file and serve the witness statement of Mr. Stanley Kingara dated 21st April 2026 within fourteen (14) days of the date of this ruling
- 2.The Defendants may, if need be, file and serve any additional witness statements and supplementary list and bundle of documents within fourteen (14) days of service by the Plaintiffs
- 3.The costs of the Application shall be in the cause
- 4.The suit is hereby transferred to the Environment and Land Court at Mavoko for hearing and determination
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 3 Rule 2 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kingoo Mailu & Maurice I. Makatiani v Jane Huhu, Catherine Huhu & Grace Wanjiru Huhu", Case Analysis (2026). ELCOS No. E008 of 2024 (O.S) - Fast Track. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5808/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.