[2025] KEELC 178 (KLR)
The court held that since the plaintiff failed to include PW2's name in the list of witnesses and did not file or serve PW2's statement on the defendants within the prescribed timelines, the defendants were deprived of their right to access to justice and a fair hearing. The court emphasized that procedural fairness...
Source-derived case information.
- Citation
- [2025] KEELC 178 (KLR)
- Parties
- Plaintiff: Milka Chepkoech alias Milcah; Defendant: Kibaes Chelugui; Defendant: Nimrod Kiptum Koech
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kapsabet
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E038 of 2022
- Procedural Posture
- Environment and Land Appeal / Ruling on Application to Exclude Witness Testimony
- Outcome
- application allowed; PW2 excluded from testifying
- Judges
- GMA Ongondo
- Legal Topics
- Witness Exclusion, Service of Documents, Fair Hearing, Access to Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Milka Chepkoech alias Milcah
Plaintiff
Kibaes Chelugui
Defendant
Nimrod Kiptum Koech
Defendant
Procedural Posture
Environment and Land Appeal / Ruling on Application to Exclude Witness Testimony
Legal Issues
- 1 Whether a witness whose name is not included in the plaintiff's list of witnesses and whose statement was not filed and served can be allowed to testify.
- 2 Whether failure to serve witness statements violates the defendants' right to a fair hearing.
Ratio Decidendi
The court held that since the plaintiff failed to include PW2's name in the list of witnesses and did not file or serve PW2's statement on the defendants within the prescribed timelines, the defendants were deprived of their right to access to justice and a fair hearing. The court emphasized that procedural fairness and the requirements of the Constitution mandate that all parties be given adequate notice of witnesses and their statements. Consequently, the application to exclude PW2's testimony was found meritorious and allowed.
Court Disposition
application allowed; PW2 excluded from testifying
Orders
- The defendants' application to exclude PW2 from testifying is allowed.
- PW2, Marcella Jerotich Bett, shall not testify in this suit.
Full Case Text
Judgment text and source record
25 paragraphs
Chepkoech alias Milcah v Chelugui & another (Environment and Land Appeal E038 of 2022) [2025] KEELC 178 (KLR) (29 January 2025) (Ruling)
Neutral citation: [2025] KEELC 178 (KLR)
Republic of Kenya
In the Environment and Land Court at Kapsabet
Environment and Land Appeal E038 of 2022
GMA Ongondo, J
January 29, 2025
Between
Milka Chepkoech alias Milcah
Plaintiff
and
Kibaes Chelugui
1st Defendant
Nimrod Kiptum Koech
2nd Defendant
Ruling
1. The instant ruling is precipitated by an application by Mr. Korir learned counsel for the defendants that PW2, Marcella Jerotich Bett, should not testify in this suit on the grounds that her name is not in the Plaintiff’s list of witnesses and her statement was not filed and served upon the defendant’s counsel as required by law.
2. In response to the application, Mr M. Orina learned counsel for the plaintiff stated that the statement of PW1 is available. That the same was not served on the Defendant’s Counsel and her name is not shown in the list of the Plaintiff’s list of witnesses dated 14/11/2022 and 25/4/2024.
3. In that regard, is the application sustainable?
4. Notably, it is common ground that the plaintiff’s list of witnesses herein does not contain the name of PW2. Further the statement of PW2 was not filed and served on the defendants’ counsel within the prescribed timelines.
5. It is trite that a party to a suit must be made aware of the existence of the matter; see Ogada-vs-Mollin (2009) KLR 620.
6. Clearly, the plaintiff’s counsel neither filed and served the statement of PW2 nor included the name of PW2 in the plaintiff’s list of witnesses. The defendant is entitled to the said documents in the spirit of access to justice and fair hearing as enshrined under Articles 48, 50 (1) and 25 (c) of the Constitution of Kenya 2010.
7. Thus, the defendants’ application is meritorious. The same is allowed accordingly.
8. It is so ordered.
DATED AND DELIVERED AT KAPSABET THIS 29TH DAY OF JANUARY 2025. G M A ONGONDOJUDGEPresent;1. Mark Orina, Learned Counsel for the plaintiff2. A. Korir, Learned Counsel for the defendants3. Walter, Court Assistant