Tutua v Kiptalam & 3 others

but after the Defendant’s application to amend their defence and counterclaim and adduce additional documents came up for hearing on 8/3/2023 on which date the Plainti conceded to the application and leave was granted by the Court, the Defendant not only led the exhibit amended defence and counterclaim and the additional documents that had been exhibited to their application but also purported to le the following foreign documents which were neither exhibited to the application for leave to adduce additional evidence nor subject to the leave that was granted by the Court on 8/3/2023: i. A condential letter dated 18/7/2022 purportedly authored by the Agricultural Development Corporation addressed to the law rm of Cheptumo & Co Advocates. ii. A condential letter dated 4/11/2022 purportedly addressed to the Agricultural Development Corporation by the law rm of Cheptumo & Company Advocates. iii. A condential letter dated 9/11/2022 purportedly authored by the Directorate of Criminal Investigations and addressed to the oce of the Hon Attorney General. 3. It is averred by the plainti, inter alia, that the above stated three letters are irregularly on record, having been led without the leave of the Court and long after the hearing of the Plainti’s case has commenced whose procurement seems patently illegal and whose origin, source, legitimacy and authenticity has not been disclosed or explained and so they cannot form part of the record of the court. The plainti urged that it is fair, just and equitable that the impugned documents that run from pages 35 to 38 of the 1st and 2nd Defendants Further List of Documents dated 9/3/2023 be expunged from the Court record. 4. In a Replying adavit dated 2/5/2023, the 2nd Defendant deposes inter alia that the Plainti’s Application dated 20/4/2023 has been made in bad faith, with no legal justication and it is eectively intended to shield from the court illegalities, acts of subterfuge and abuse of the court process by the Plainti; that the 3rd Defendants’ Further List of Documents dated 28/09/2022 had only one document dated 23/09/2023 in form of a letter by the Director of Criminal Investigations enclosing controversial documents that violate the right to fair trial. 5. The Plainti led her submissions dated 30/5/2023 on 5/6/2023 while the 1st, 2nd and 4th Defendants led their submissions dated 9/6/2023 on 13/6/2023. 6. Submitted for the Plainti, the issues for determination are (a) The question of leave and (b) Whether the ling of the impugned evidence is tenable. 7. On issue (a); the plainti submits that on 14/3/2023, the Defendants led their further list of documents that not only contained the documents that had been exhibited to their application dated 2/2/2023 but also contained three alien documents that were deceitfully sneaked on record. The application for leave to le additional evidence dated 2/2/2023 according to paragraph 3 of the supporting adavit sworn by the 4th Defendant related to the exhibited documents marked “B” which did not include the alien documents. The Plainti relies on the cases of Preview Property Agency & another v Terrie Wanjiku Miano [2021] eKLR, P.H Ogola Onyango t/a Pitts Consult Consulting Engineers vs Daniel Githegi t/a Quantalysis [2005] eKLR and Johana Kipkemei Too v Hellen Tum [2014] eKLR. On issue (b), the Plainti: that the basis of the subject documents is that these are contrived and stolen documents, which if genuine have been acquired in violation of the law. The Plainti relies on the cases of Baseline Architects Limited & 2 others vs National Hospital Insurance Fund Board Management [2008] eKLR, Susan Wariara Kariuki v Diakonie Katastrophenehife [2016] eKLR, Jackline Chepkemoi Kimeto vs Sha Grewal Kaka & 3 others [2019] eKLR, Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others [2020] eKLR and Njonjo Mue & another v Chairperson of Independent Electoral and Boundaries Commission [2017] eKLR. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21027/eng@2023-10-26 2

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8. Submitted for the 1st, 2nd & 4th Defendants: the issues for determination are (a) whether additional leave is required to le documents in support of an amended pleading; (b) Whether the letter dated 18/7/2022 from Agricultural Development Corporation, letter dated 4/11/2022 from Cheptumo & Company Advocates and a letter dated 9/1/2022 are illegitimate and inadmissible. 9. On (a), the 1st, 2nd and 4th Defendants submit that that there is no direct provision in the Civil Procedure Rules that expressly addresses the issue of additional document save to add that Order 7 rule 5 makes provision for documents accompanying a defence and counterclaim. It is their submission that the said equally applies to amended pleadings as well as the party seeking amendments is expected to le documents in support of the amendment if need be. The 1st, 2nd and 4th Defendants rely on the cases of Jumbo North (E.A) Limited v Martin Ratemo Nixon [2019] eKLR, Moses Warui Gatimu v Douglas Mwai Machuru & Another [2018] eKLR, Hangover Kaakwacha Hotel Ltd v Philip Adundo & Leonard Adundo t/a Hangover Kaakwacha Hotel [2022] eKLR, Aniket Property & Investments Limited v Hamadi Juma Mwakibibo & 7 others [2018] eKLR. On issue (b), the 1st, 2nd and 4th Defendants submit that it is premature to raise issues of admissibility. They rely on the cases of Moses Warui Gatimu v Douglas Mwai Machuru & another [2018] eKLR, Attorney General v Torino Enterprises Limited [2020] eKLR, Michael Sergon v Joseph K. Kigen & 5 others, Gabriel Macharia Njoroge v Land Registrar Murang’a Lands Oce & another [2018] eKLR, Ngomeni Swimmers Limited v Katana Chara Suleiman [2014] eKLR, Evangeline Nyegera (Suing as the Legal Representative of Felix M’lkiugu alias M’ikiugu Jeremia M’ Raibuni (Deceased) v Godwin Gachagua Gitui [2017] eKLR and Director of Public Prosecutions v Tom Ojienda t/a Tom Ojienda & Associates Advocates & 3 others [2019] eKLR. 10. I have considered the application by the Plainti dated 20/4/2023 and the supporting adavit, the 2nd Defendant’s Replying Adavit dated 2/5/2023 and their submissions and the following issue arises for determination: a. 11. Whether the letter dated 18/7/2022, the letter dated 4/11/2022 and a letter dated 9/11/2022 adduced by the Defendants should be struck out and expunged? This Court notes that the orders sought in the Notice of Motion Application by the 2nd and 3rd Defendants in the Application dated 2/2/2023 were as follows: 1. That this application be certied urgent and heard ex-parte in the rst instance; 2. That the 2nd and 4th Defendant/ Applicants be granted leave to Amend their Statement of Defence as per the attached draft Amended Statement of Defence. 3. That the 2nd and 4th Defendants be granted leave to le additional documents and a witness statement in support of their Defence and Counterclaim. 12. The Plainti’s application dated 20/4/2023 contends that the three documents were sneaked on record. The Court has examined the record and found that the documents mentioned by the plainti and which are listed at paragraph 2 of the present ruling were not part of the bundle exhibited as “Exhibit B” in the supporting adavit. 13. This court can only consider documents which were disclosed to the plainti at the recording of the consent of 8/3/2023 to have been covered by that consent and not otherwise. The consent was not to open oodgates to the defendants to le any documents that had not been the subject of that application. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21027/eng@2023-10-26 3

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14. The Court therefore nds that the contested documents produced by the 2nd and 4th Defendants are not properly on record as they were not covered of the consent of the parties. The plainti’s application dated 20/4/2023 has merit and I grant it in terms of prayer no. 1 thereof. 15. The following documents are therefore struck out and expunged from the court record: 16. i. Letter dated 18/7/2022 purportedly authored by the Agricultural Development Corporation addressed to the law rm of Cheptumo & Co Advocates. ii. Letter dated 4/11/2022 purportedly addressed to the Agricultural Development Corporation by the law rm of Cheptumo & Company Advocates. iii. Letter dated 9/11/2022 purportedly authored by the Directorate of Criminal Investigations and addressed to the oce of the Hon Attorney General. The costs of the present application shall be borne by the 2nd and 4th defendants only. DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 26TH DAY OF OCTOBER, 2023. MWANGI NJOROGE JUDGE, ELC, MALINDI https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21027/eng@2023-10-26 4

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