[2020] KEELC 1517 (KLR)
The court found that the application was unopposed and that the reasons advanced by the plaintiff for the late filing of the witness statement and additional documents were satisfactory. The matter had not proceeded to hearing, and the respondents would not suffer any prejudice if the orders sought were granted. The...
Source-derived case information.
- Citation
- [2020] KEELC 1517 (KLR)
- Parties
- Plaintiff: Christina Barabara Malakwen (Suing as legal representative of the Estate of the late Raphael Kiptoo Biebei); Defendant: Benjamin Mwale Engairo; Defendant: Titus Kipyab; Defendant: Land Adjudication & Settlement Officer Trans-Nzoia; Defendant: Ibrahim Wafula
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 102 of 2018
- Procedural Posture
- Miscellaneous Application / Interlocutory Application Ruling
- Outcome
- application allowed
- Legal Topics
- Leave to File Documents, Witness Statements, Late Filing, Prejudice to Parties, Admissibility of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christina Barabara Malakwen (Suing as legal representative of the Estate of the late Raphael Kiptoo Biebei)
Plaintiff
Benjamin Mwale Engairo
Defendant
Titus Kipyab
Defendant
Land Adjudication & Settlement Officer Trans-Nzoia
Defendant
Ibrahim Wafula
Defendant
Procedural Posture
Miscellaneous Application / Interlocutory Application Ruling
Legal Issues
- 1 Whether the plaintiff should be granted leave to file a witness statement for Philip Chepkwony and a further list of witnesses and documents out of time.
- 2 Whether the list of documents and the witness statement filed with the application should be deemed as properly filed.
Ratio Decidendi
The court found that the application was unopposed and that the reasons advanced by the plaintiff for the late filing of the witness statement and additional documents were satisfactory. The matter had not proceeded to hearing, and the respondents would not suffer any prejudice if the orders sought were granted. The court exercised its discretion in favour of the plaintiff, allowing the late filing to ensure that all relevant evidence would be available for the just determination of the dispute. The overriding objective of the Civil Procedure Act and Rules is to facilitate the just, expeditious, proportionate, and affordable resolution of civil disputes. In the absence of opposition and...
Court Disposition
application allowed
Orders
- Leave is granted to the plaintiff to file a witness statement for Philip Chepkwony and a further list of witnesses and documents out of time.
- The list of documents and the witness statement of Philip Chepkwony filed with the application are deemed as properly filed.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KITALE
CASE NO. 102 OF 2018
CHRISTINA BARABARA MALAKWEN (Suing as legal representative of the Estate of the late
RAPHAEL KIPTOO BIEBEI)..................................................................................PLAINTIFF
VERSUS
BENJAMIN MWALE ENGAIRO.........................................................................1STDEFENDANT
TITUS KIPYAB.....................................................................................................2ND DEFENDANT
LAND ADJUDICATION & SETTLEMENT OFFICER TRANS-NZOIA.....3RD DEFENDANT
IBRAHIM WAFULA............................................................................................4TH DEFENDANT
RULING
1. By a Notice of Motion dated 17/3/2020 brought under Section 3, 3A and 63(e) of the Civil Procedure Act, Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules 2010,the applicant who is the plaintiff seeks the following orders:
(1) …spent
(2) That this honourable court do grant the applicant/plaintiff leave to file a witness statement for one PHILIP CHEPKWONY and further list of witnesses and documents to be relied on during the hearing out of time.
(3) That the list of documents and list of witnesses and the witness statement of PHILIP CHEPKWONY filed herewith be deemed as properly filed.
(4) That the costs be in the cause.
2. The application is supported by the affidavit of the plaintiff sworn on 17/3/2020. That affidavit has a number of annextures attached to it.
3. The application is based on the grounds that although the name of Philip Chepkwony was included in the list of witnesses, his statement was not filed; that there is need to include some further documents and also call the Land Registrar, Trans-Nzoia as a witness in this case; that the respondents shall not be prejudiced if the application is allowed and that the further documents and the calling of the formal witness will assist the court in the determination of the dispute.
4. The supporting affidavit reiterates the same matters set out in the grounds above. An affidavit of service was filed showing that the application was served. However, the respondents did not file any responses despite being served. The plaintiff filed her submissions on 30/6/2020. I have considered the application and the filed submissions.
5. The issues that arise in the instant application or whether the plaintiff should be granted leave to file a witness statement Philip Chepkwony and a further a list of witnesses and documents to be relied on during the hearing at this juncture and whether the list of documents and the witness statement filed in the record with the application be deemed as properly filed.
6. I have considered the application before me. It is not opposed. It is explained in the supporting affidavit that the current advocate took over the matter after it was transferred to this station from Eldoret.
7. It is stated that in the course of preparing for the trial it became apparent that the statement of Philip Chepkwony a son to the plaintiff had not been recorded and filed though his name had been included in the list of plaintiff’s witnesses.
8. The deponent further states that it has become necessary to issue summons the County Land Registrar to produce the register in respect of the suit land.
9. Finally, the deponent states that it is necessary to include further documents for production at the trial and that the respondents would not be prejudiced should the instant application be allowed.
10. As stated before the application is not opposed. This is a suit that was filed in the middle of the year 2018. Hearing has not yet commenced and I am of the opinion no prejudice would be occasioned to the respondents if the application was granted.
11. I therefore grant the application dated 17th March 2020 as prayed Prayer No. 2 and 3. The costs of the application shall be in the cause. This case shall be mentioned on the 29th July 2020 via teleconference for pre-trials.
It is so ordered.
Dated, signedand deliveredatKitale via electronic mail on this23rdday of July, 2020.
MWANGI NJOROGE
JUDGE, ELC, KITALE.