[2017] KEELC 577 (KLR)
The court held that allowing the defence to introduce photographs midstream, which had not been previously disclosed to the plaintiffs or the court, would amount to ambush and violate the principles of a fair hearing as enshrined in Article 50(1) of the Constitution. The court emphasized that it had already issued...
Source-derived case information.
- Citation
- [2017] KEELC 577 (KLR)
- Parties
- Plaintiff: Adriana Kaumi Mwarabu; Plaintiff: Mwarabu Kirimi Nicholas; Defendant: Pastor Dennis Mwenda
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 98 of 2016
- Procedural Posture
- Land and Property Suit / Ruling on Admissibility of Evidence During Defence Hearing
- Outcome
- Objection upheld; defence photographs excluded from evidence.
- Legal Topics
- Admissibility of Evidence, Pre Trial Directions, Fair Hearing, Documentary Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Adriana Kaumi Mwarabu
Plaintiff
Mwarabu Kirimi Nicholas
Plaintiff
Pastor Dennis Mwenda
Defendant
Procedural Posture
Land and Property Suit / Ruling on Admissibility of Evidence During Defence Hearing
Legal Issues
- 1 Whether the defence can introduce photographs as evidence midstream without prior disclosure to the plaintiffs and the court.
- 2 Whether admitting such evidence would contravene pre-trial directions and the right to a fair hearing.
Ratio Decidendi
The court held that allowing the defence to introduce photographs midstream, which had not been previously disclosed to the plaintiffs or the court, would amount to ambush and violate the principles of a fair hearing as enshrined in Article 50(1) of the Constitution. The court emphasized that it had already issued pre-trial directions specifying that only documents on record would be relied upon. No sufficient reason was provided to depart from these directions. Upholding procedural fairness and adherence to court directions, the court sustained the plaintiffs' objection and excluded the photographs from evidence.
Court Disposition
Objection upheld; defence photographs excluded from evidence.
Orders
- The photographs sought to be produced by the defence are not admitted as evidence.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 98 OF 2016
ADRIANA KAUMI MWARABU………...………………….1STPLAINTIFF
MWARABU KIRIMI NICHOLAS………….………...……2ND PLAINTIFF
VERSUS
PASTOR DENNIS MWENDA………………......…………...DEFENDANT
RULING
On 17. 7.17, plaintiffs’ case commenced and was closed. Defence case then commenced. Midstream defence desired to produce some photographs in support of defence case. These photos had not been availed to the opposing party and the Court before.
The counsel for plaintiffs raised Objection to the production of these documents and it was averred that such evidence ought to have been availed earlier.
I find that pre-trial directions were conducted by this Court on 5. 4.17. The Court’s directions regarding production of documents was that:-
“the Court will rely on documents on record only”.
I have not been persuaded as to why I should digress from this direction.
The production of documents hitherto unseen by the plaintiffs’ side midstream of defence case amounts to ambush and this is against the provisions of Article 50 (1) of The Constitution on what amounts to a fair hearing.
As such, the objection is upheld. The photographs shall not be admitted as evidence for the defence.
DELIVERED, DATED AND SIGNED AT MERU THIS 15TH DAY OF NOVEMBER, 2017 IN THE PRESENCE OF:-
CA:Janet/Haway
B.G Kariuki for Plaintiffs Present
Kithinji for Defendant Present
Hon. L.N. MBUGUA
ELC JUDGE