Mavoloni Company Limited v Land Registrar, Thika & 14 others

RULING 1. What is before Court for determination is the 12th Defendant’s Notice of Motion Application dated the November 29, 2022 where he seeks the following Orders: 1. That the 12th Defendant/Applicant be granted leave to le and serve his Statement, List of Documents and List of Witnesses and that the Statement, List of Documents and Witnesses annexed to the Adavit in support hereof be deemed to be duly led and served upon payment of the requisite Court fees. 2. That the costs of this Application be in the cause. 2. The Application is premised on the grounds on the face of it and the Supporting Adavit of Dominic Kikui where he deposes that owing to the indisposition of his late father, he was unable to visit his Advocate’s Chambers for purposes of signing the statement and giving further instructions in respect to the suit herein. He avers that his father was indisposed for a long period and he was always on standby to attend to his emergencies, but he later passed on. Further, that his late father’s demise had an impact on his life and he became disoriented. He conrms that he has never lost interest in the instant suit as the Court record shows that his Advocate has been representing him. He hence seeks leave to be allowed to le his statement and related documents. 3. The Plainti opposed the instant Application by ling a Replying Adavit sworn by Joseph Munyao Mutisya, it Chairman where he deposes that the said Application is frivolous, vexatious, lacks merit and an abuse of the court process. He contends that the grounds set out in the Application including the facts as stated in the Supporting Adavit do not warrant the grant of the orders sought. He insists that the instant Application has been brought too late in the day and the Applicant has deliberately failed to comply with Order 3 Rule 2 of the Civil Procedure Rules. He states that if the instant Application is allowed, the Plainti will be seriously prejudiced as it closed its case and will have no opportunity to reopen it or call additional evidence. Further, that he has been in possession of his documents since 1993 and has not explained why he waited for every other party and in particular the Plainti to close its case and then seek to le the said documents. He reiterates that the directions in respect to the hearing were taken long time ago and the matter subsequently set down for hearing. 4. None of the other Defendants opposed the instant Application. 5. Parties opted not to le submissions to canvass the instant Application. Analysis and Determination 6. Upon consideration of the instant Notice of Motion Application including the respective Adavits as well as the annexures therein; the only issue for determination is whether the 12th Defendant should be granted leave to le and serve his Witness Statement, List of Documents including List of Witnesses. 5. The 12th Defendant has sought for leave to le and serve his Witness Statement as well as List of Documents and Witnesses. He has explained that he failed to le the said Witness Statement including documents on time due to the indisposition of his father whom he was taking care of, hence he was not able to visit his advocate’s oce to sign the documents as well as give further instructions. The Plainti has vehemently opposed the instant Application insisting that it will be prejudiced since it had closed its case and that the 12th Defendant took long to le the Statement including List of Documents. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16779/eng@2023-04-13 2

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6. Order 3 Rule 2 of the Civil Procedure Rules stipulates thus: All suits led under Rule 1(1) including suits against the government, except small claims, shall be accompanied by— a. 7. the Adavit referred to under Order 4 Rule 1(2); (b) a list of witnesses to be called at the trial; (c) written statements signed by the witnesses excluding expert witnesses; and (d) copies of documents to be relied on at the trial including a demand letter before action: Provided that statement under sub rule (c) may with leave of court be furnished at least fteen days prior to the trial conference under Order 11.” While Section 3A of the Civil Procedure Act provides that: Nothing in this Act shall limit or otherwise aect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” 8. I note as per the Court Record, on the June 14, 2019, the Plainti was allowed to amend its Originating Summons. Further, on the June 26, 2021, parties were granted leave of 45 days to le additional documents and witness statements. As per annexure “DK 1” in the Supporting Adavit, which is a burial permit for the 12th Defendant’s father, I note he died on June 27, 2021 which was around the same time parties had been granted leave to le additional documents and Witness Statements. 9. Insofar as the Plainti has opposed the instant Application, I have had a chance to peruse the annexed Witness Statement including documents and I opine that ling of the same is not prejudicial to the Plainti as claimed. Further, in the interest of justice, I nd the 12th Defendant’s reasons explaining the delay in ling the statement and list of documents plausible. It is my considered view that the Plainti has had a chance to peruse the Witness Statement as well as the documents attached to the Supporting Adavit and can be granted an opportunity to reopen its case or call additional evidence if need be. In the foregoing, while relying on the legal provisions cited above, I will exercise my discretion and allow the 12th Defendant to le his Witness Statement including List of Documents. 10. In the circumstances, I nd the Notice of Motion Application dated the November 29, 2022 merited and will allow it but make no order as to costs. 11. I direct that the 12th Defendant do le and serve his Witness Statement including List of Documents as annexed to the instant Application within seven (7) days from the date hereof. DATED, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS THIS 13TH DAY OF APRIL, 2023 CHRISTINE OCHIENG JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16779/eng@2023-04-13 3

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