[2023] KEELC 21963 (KLR)

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. This application is dated 2nd May, 2023 and seeks orders:a.That this court be pleased to grant the 3rd Defendant, leave to file all his list of documents out of time in terms and manner outlined and annexed to the Applicant’s supporting affidavit in support of this application.b.That the outlined documents dated and filed on diverse dates to wit; 23rd January, 2020, 2nd November, 2021 and 3rd November, 2021 be deemed as duly filed and properly on record.c.That the costs of the application be provided for.

2. The application is supported by the affidavit of one Muthomi Njuki an advocate in the firm 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. 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 Plaintiff 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 file any documents by the Honourable Court which leave culminated to filing 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 plaintiff’s advocate canvasses the application on one main ground. It is That the 3rd defendant’s advocate swore the supporting affidavit against the provisions of the law. The plaintiff’s advocate says That the said affidavit raises contentious issues which do not constitute formal or non-contentious 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 plaintiff is opposed to production of new documents after he, the plaintiff, and the 1st and 2nd defendants had testified and closed their cases.

5. In support of his assertions, the plaintiff 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 affidavit sworn by an advocate in his firm 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 affidavit. In support of this assertion, the 3rd defendant’s advocate proffered 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 filed after the plaintiff, the 1st defendant and the 2nd defendant had testified and closed their cases. It has been filed 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 find 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 filed by the Plaintiff is hereby upheld.b.The 3rd defendant’s Notice of Motion Application dated 2nd May, 2023 is hereby dismissed.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 NJOROGEJUDGE