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MagistrateDismissedNot stated in the judgment (suit filed on 29/8/2022)· [2026] KEMC 395 (KLR)

Muteti v Mutua & another (Civil Case E126 of 2022) [2026] KEMC 395 (KLR)

Magistrates' Court (Environment and Land / civil suit, court not expressly named)
28 July 2026
4,508 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan magistrate refused a plaintiff's late attempt to add a witness statement after three years of unexplained delay, warning courts will not reward indolent parties.

What this practically means

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Executive summary

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The plaintiff, in a suit filed on 29/8/2022, applied on 6/1/2026 for leave to file an additional (eye) witness statement out of time, seeking to have the further list of witnesses and statement deemed duly filed, supported by an affidavit sworn by his counsel. The defendants opposed, arguing the application was an afterthought, made outside a 14-day period granted by the court, and would prejudice the defence and prolong a part-heard matter in which two witnesses had already testified. The court framed two issues: whether sufficient grounds existed to warrant extension of time, and costs. Applying sections 1A, 1B and 3A of the Civil Procedure Act, Order 3 rule 2, Order 19 rule 3(1) and Order 50 rule 6, together with Article 159(2)(b) of the Constitution, the court accepted it had discretion to enlarge time but held the plaintiff had not earned the indulgence. The proposed witness - the plaintiff's mother - was never named on the 2022 list of witnesses, directions had been taken in 2023 with counsel confirming compliance, and the statement was signed on 6/1/2026, showing it did not previously exist. The court criticised counsel for swearing the affidavit on the plaintiff's behalf, contrary to Order 19 rule 3(1), and found a lack of candour. Relying on Salat, the court held extension of time is an equitable remedy requiring an explanation of delay, which was absent. By disposition, the court dismissed the application with costs to the defendants.

Key legal issues

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01

Whether the court should extend time for filing an additional witness statement under Order 3 rule 2 and Order 50 rule 6 of the Civil Procedure Rules

Holding

The application was dismissed: there was inordinate unexplained delay of over three years, the witness statement was created on the date of the application, the affidavit was improperly sworn by counsel, and the plaintiff failed the Salat principles for extension of time.

Reasoning

The court held that although it has jurisdiction to enlarge time, the applicant as a party in default bears the burden of providing a full, honest and acceptable explanation. Here the proposed witness (the plaintiff's mother) was never on the list of witnesses filed in 2022, directions had been taken in 2023 with counsel confirming compliance, and the statement itself was signed and dated 6/1/2026, showing it never existed and was not inadvertently omitted. The delay defeated equity and the overriding objective.

p. 6
02

The propriety of counsel swearing an affidavit deposing to the plaintiff's intentions and beliefs

Holding

The court found the affidavit irregular and the parties less than candid, since facts of belief and intention must be deposed to by the plaintiff personally.

Reasoning

Relying on Order 19 rule 3(1) of the Civil Procedure Rules and the Gerphas Alphonse Odhiambo and Kenya Horticultural Exporters authorities, the court held that affidavits must be confined to facts the deponent can prove of his own knowledge. Counsel cannot depose that the plaintiff intended and believed a witness statement had been filed; such matters are within the plaintiff's own knowledge, and it is not counsel's duty to avail witnesses.

p. 6

Legal principles established

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  • Extension of time is not a right of a party but an equitable remedy available at the court's discretion to a deserving party who lays a basis, including an explanation of the delay
  • A party alleging excusable mistake must identify the specific mistake sought to be excused
  • The overriding objective cannot be invoked as a matter of course to excuse any failing to comply with the rules
  • Ordinarily an affidavit should not be sworn by an advocate on behalf of his client when the client is available to swear it

Court orders

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  1. 1.Dismissal of the plaintiff's application dated 6/1/2026
  2. 2.Costs of the application to the defendants
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 50 rule 6 of the Civil Procedure Rules (inherent and discretionary power to enlarge time)

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, "Muteti v Mutua & another (Civil Case E126 of 2022) [2026] KEMC 395 (KLR)", Case Analysis (2026). Not stated in the judgment (suit filed on 29/8/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/395/eng@2026-07-28

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