Ali v Bika & 2 others (Environment & Land Case 002 of 2022) [2023] KEELC 21963 (KLR) (4 December 2023) (Ruling) Neutral citation: [2023] KEELC 21963 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT ISIOLO ENVIRONMENT & LAND CASE 002 OF 2022 PM NJOROGE, J DECEMBER 4, 2023 BETWEEN FATUMA MOHAMED ALI ....................................................................... PLAINTIFF AND BORU BIKA ...................................................................................... 1ST DEFENDANT HENRY KIMATHI .......................................................................... 2ND DEFENDANT ADAM GITONGA NYAGA (SUING AS THE LEGAL REPRESENTATIVE OF THE ESTATE OF FESTUS NYAGA KABERIA) ........................... 3RD DEFENDANT RULING 1. 2. This application is dated 2nd May, 2023 and seeks orders: a. That this court be pleased to grant the 3rd Defendant, leave to le all his list of documents out of time in terms and manner outlined and annexed to the Applicant’s supporting adavit in support of this application. b. That the outlined documents dated and led on diverse dates to wit; 23rd January, 2020, 2nd November, 2021 and 3rd November, 2021 be deemed as duly led and properly on record. c. That the costs of the application be provided for. The application is supported by the adavit of one Muthomi Njuki an advocate in the rm of Kiautha Arithi & Co. Advocates, who represents the applicant in this matter, and has the following grounds:i. That one Festus Nyaga Kaberia (deceased) died on 26th November, 2021. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21963/eng@2023-12-04 1
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ii. That the Applicant herein, who is now the legal representative of the estate of Festus Nyaga Kaberia was granted with limited grant letters of administration AD Litem on 8th July, 2019. iii. That the Honourable Court on 16/04/2018 heard and closed the Plainti case and went ahead to hear the defence case on part of the 1st and 2nd defendants. iv. That further on 16/04/2018, the Honourable Court adjourned hearing on the part of the 3rd defendant Festus Nyaga Kaberia (Now deceased) with costs as he was absent and unwell. v. That on 14/10/2019 the 3rd defendant was granted leave to le any documents by the Honourable Court which leave culminated to ling three sets of 3rd defendant’s list of documents dated 23/01/2020, 02/11/2021 and 03/11/2021. 3. The application was canvassed by way of written submissions. 4. In his submissions, the plainti’s advocate canvasses the application on one main ground. It is That the 3rd defendant’s advocate swore the supporting adavit against the provisions of the law. The plainti’s advocate says That the said adavit raises contentious issues which do not constitute formal or noncontentious matters of fact as envisaged by the provision to Rule 9 of the Advocates (Practice Rules). One of the contentious issues he claims to be in existence is That the plainti is opposed to production of new documents after he, the plainti, and the 1st and 2nd defendants had testied and closed their cases. 5. In support of his assertions, the plainti has a plethora of cases. All these cases are good authorities in their facts and circumstances. However, no two cases are congruent to a degree of mathematical exactitude. The totality of the facts and circumstances of every case must be put into perspective before a court comes to its decision in every matter. 6. The 3rd defendant’s advocate opposes the Preliminary Objection and says That the impugned supporting adavit sworn by an advocate in his rm did not go against the law as its contents contained formal and non-contentious issues which were within the personal knowledge of the advocate who swore the adavit. In support of this assertion, the 3rd defendant’s advocate proered the case of: Kwacha Communications Limited and Another Versus Pindoria Holdings Limited and Another [2022] eKLR. 7. I do note That the impugned application was led after the plainti, the 1st defendant and the 2nd defendant had testied and closed their cases. It has been led very late in the day. One can be excused if one feels That the said application was an afterthought. 8. I have however carefully considered the impugned application. I unequivocally nd That it raises some non-formal and contentious issues. For this reason, I am inclined to uphold the Notice of Preliminary Objection. 9. In the circumstances, I issue the following orders:a. The Notice of Preliminary Objection dated 5th July, 2023 led by the Plainti is hereby upheld. b. The 3rd defendant’s Notice of Motion Application dated 2nd May, 2023 is hereby dismissed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21963/eng@2023-12-04 2
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c. Hearing of the Main Suit should proceed to its conclusion. d. Costs shall be in the cause. DELIVERED IN OPEN COURT AT ISIOLO THIS 4TH DAY OF DECEMBER, 2023. HON. JUSTICE P.M NJOROGE JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21963/eng@2023-12-04 3
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