[2019] KEELC 1858 (KLR)
The court found that the plaintiff's failure to file the proper land sale agreement was a curable error under Article 159(2)(d) of the Constitution, as the document was referenced in the plaintiff's list of documents and in the testimony of PW1. The court emphasized its discretion to allow the filing of documents to...
Source-derived case information.
- Citation
- [2019] KEELC 1858 (KLR)
- Parties
- Plaintiff: Barrack Odhiambo Odero; Defendant: Ezekiah Kinyangi Busaka
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 651 of 2017
- Procedural Posture
- Environment and Land Case / Ruling on Oral Application to File Additional Document After Close of Defendant's Case
- Outcome
- Application allowed.
- Judges
- GMA Ongondo
- Legal Topics
- Admission of Evidence, Late Filing of Documents, Discretion of Court, Fair Hearing Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Barrack Odhiambo Odero
Plaintiff
Ezekiah Kinyangi Busaka
Defendant
Procedural Posture
Environment and Land Case / Ruling on Oral Application to File Additional Document After Close of Defendant's Case
Legal Issues
- 1 Whether the plaintiff should be granted leave to file and serve a copy of the land sale agreement dated 1st September 1986 after the close of the defendant's case.
- 2 Whether the failure to file the proper agreement is a curable error under Article 159(2)(d) of the Constitution.
- 3 Whether allowing the application would prejudice the defendant or offend the right to a fair hearing.
Ratio Decidendi
The court found that the plaintiff's failure to file the proper land sale agreement was a curable error under Article 159(2)(d) of the Constitution, as the document was referenced in the plaintiff's list of documents and in the testimony of PW1. The court emphasized its discretion to allow the filing of documents to do substantive justice and not to defeat claims on technicalities. The court also considered the right to a fair hearing under Articles 50(1) and 23(c) and the overriding objective of the Environment and Land Court Act. The court held that the defendant would not be prejudiced, as both parties would have the opportunity to recall witnesses to address the agreement....
Court Disposition
Application allowed.
Orders
- Plaintiff granted leave to file and serve a copy of the agreement dated 1st September 1986 within 45 days.
- Parties at liberty to recall PW1, PW2, PW3, DW1, and DW2 to adduce evidence only with regard to the said agreement.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MIGORI
ELC CASE NO. 651 OF 2017
BARRACK ODHIAMBO ODERO.....................................PLAINTIFF
VERSUS
EZEKIAH KINYANGI BUSAKA...................................DEFENDANT
RULING
1. On 2nd July 2019, Mr. Agure Odero learned counsel for the plaintiff orally sought leave of the Court to file a proper document namely a copy of land sale agreement dated 1st September, 1986. He did so immediately after the close of the defendant’s case on even date.
2. Counsel submitted that he filed an agreement dated 1st September 1986 (DExhibit 1) in lieu of the one he is seeking leave to file and serve. That his failure to file the proper agreement was an error which can be cured under Article159 (2) (d) of the Constitution of Kenya, 2010. That the evidence of PW1 conforms with it’s contents and is indicated on document No. 4 in the plaintiff’s list of documents dated 29th May, 2017.
3. Mr. Abisai, learned Counsel for defendant opposed the plaintiff’s application. He did submit that the order sought goes to the root of the case and it is not a technical one. That the document sought to be filed and served was not served on them. That the document is strange and that the defendant’s case has been closed.
4. I have considered the arguments by counsel for the respective parties in this application. So, is the plaintiff’s application merited in the circumstances?
5. It is notable from the plaintiff’s list of documents dated 29th May 2017, that the agreement sought to be filed and served appears under the document (s) listed as number 4 thereof. PW1 referred to the agreement in his testimony, too. However, the plaintiff’s counsel contended that the non production of the same was a curable error under Article 159 (2) (d) (supra).
6. From the record in the instant suit, the defendant’s case was closed on 2nd July 2019. The defendant’s counsel asserted that failure to produce the agreement is not a technical lapse.
7. This court is aware of Article 159 (2) (d) (supra) on disregarding technicalities of procedure. Articles 50 (1) and 23 (c) of the same Constitution provide for uncurtailed right to fair hearing.
8. The main concern of this Court is to do justice to the parties. It is within the discretion of the court to grant the orders sought. See Patel =vs= East African Cargo Handling Services Ltd (1974) EA 76.
9. It is trite law that mistake of counsel should not be visited upon a client; see Shabir Din =vs= Ram Parkash Anand (1955)EACA Vol. 22 page 48.
10. In the case of Kanwal Sarjit Singh Dhiman =vs= Kashavji Jivraj Shah (2015) eKLR, it was held that the Courts exist for purposes of dispensing justice. That the sword of justice cuts both ways and that the court has to balance the two divergent interests.
11. Borrowing from the foregoing authorities coupled with the nature of the application and being mindful of the overriding objective under Section 3 of the Environment and Land Court Act, 2015 (2012), I find that the application is full of merit. It is not thwarted by the defendant’s opposition thereto hence bound to succeed.
12. Wherefore, I allow the application by the plaintiff’s counsel to file and serve a copy of an agreement dated 1st September 1986 referred to in the testimony of PW1 and as shown in the plaintiff’s list of documents dated 29th May 2017 within the next 45 days from this date. The parties are at liberty to recall PW1, PW2, PW3, DW1 and DW2 to adduce evidence only with regard to the said agreement.
13. Further hearing fixed for 25th November, 2019
It is so ordered
DELIVERED, SIGNED andDATED in open court at MIGORI this 10th day of July, 2019.
G.M.A. ONGONDO
JUDGE
In the presence of :-
Mr. Agure Odero learned Counsel for plaintiff
Mr. Abisai learned Counsel for the defendant
Tom – Court Assistant