[2017] KEELC 3400 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT

AT MILIMANI

ELC NO.282 OF 2012

CITY COUNCIL OF NAIROBI……...……………………APPLICANT

=VERSUS=

1. THE ATTORNEY GENERAL

2. MINISTER FOR STATE FOR DEFENCE

3. KENYA DEFENCE FORCES…………………...….DEFENDANTS

RULING

1. This is a Ruling in respect of a preliminary objection filed on 3rd February 2016, by the Plaintiff and a Notice of Motion filed on 7th April 2016, by the Defendants.

2. The Preliminary objection seeks to have the documents filed by the Defendants expunged from the record on the ground that the same were filed contrary to the directions given by Lady Justice Gacheru on 12th March 2014. The Notice of Motion on the other hand seeks extension of time for the Defendants to file their documentsbefore further hearings of the suit and that the documents already filed deemed to have been properly filed.

3. The genesis of the preliminary objection and the Notice of Motion can be traced to the directions given on 12th March 2014, by Lady Justice Gacheru in furtherance of pre-trial conference. The plaintiff’s counsel had indicated to court on 12th February 2014,that they had complied with pre-trial requirements. The case was then re-scheduled to 12th March 2014,when the judge directed that the defendants counsel do comply with the Pre-trial requirements within 30 days.

4. The period of 30 days expired before the counsel for the defendants could comply. On 7th May 2014, the matter was mentioned before the Judge for pre-trial conference. On this date, the Plaintiff’s counsel intimated to court that they had fully complied and that the matter be set down for hearing. The judge then observed that the Attorney General was not keen on this matter. She directed that a date for hearing be taken at the registry.

5. The Plaintiff’s advocate fixed the case for hearing on 30th July 2015. The Plaintiff called one witness who testified in chief and the trial adjourned for cross-examination which was to proceed on 14th September 2016. In the meantime, the Defendants counsel filed their witness’ statement and documents on 10th August 2015.

6. There were directions given by Lady Justice Gacheru on 14th November 2016, that both the Notice of Motion and the preliminary objection were to be heard on 16th January 2017. The Plaintiff had filled its submissions in respect of its preliminary objection on 12th April 2016. The Attorney General did not file submissions in respect of the preliminary objection. The Plaintiff on the other hand neither filed a replying affidavit in opposition to the Notice of Motion by the Defendants nor submissions in opposition of the same.

DEFENDANTS CONTENTION:

7. The Defendants contend that failure to file their documents within the time given by the judge was because of an upsurge in litigation in the Attorney General’s Office coupled with inability to get documents relating to the dispute from the concerned parties.

8. The defendants also contend that there were indeed attempts by the counsel for the parties to allow both the plaintiff and the defendants to put in documents in support of their respective cases but these attempts were frustrated by the divergent approaches proposed by counsel for the parties. The defendant had proposed that their documents which had been filed be deemed to have been properly filed and that the plaintiff be allowed to re-open their case and file further documents before the case proceeds from where it had reached.

9. The Plaintiff on the other hand, was of the view that the case do start de-novo, the documents filed by the defendants be deemed to have been duly filed and the plaintiff be allowed to retrieve their documents from the Court file and file them afresh.

PLAINTIFF’S CONTENTION

10. The Plaintiff’s only contention is that the documents by the defendants were filed contrary to the directions of the judge and as such ought to be expunged.

ANALYSIS

11. I have considered the preliminary objection by the plaintiff, the submissions in support of it as well as the cases in support of the same. I have also considered the application by the defendants.

12. A look at the proceedings in the file shows that besides the parties preparing for the trial of this case, there were also attempts to settle this matter which were going on. It is also clear from correspondence exchanged between counsel for the parties that they attempted to look for a suitable way of curing what seems to have been triggered by the failure by the defendants counsel to comply with the directions of the judge given on 12th March 2014.

13. The issues which emerge for determination in this application and preliminary objection is whether the documents filed herein should be expunged or whether the same should be deemed to have been properly filed. The defendants have given a reason that they were unable to file documents in time because of pressure of work and secondly because of inability to get documents in time.

14. I have no reason to doubt that indeed there is an upsurge in litigation where the Attorney General is supposed to defend numerous claims. A look at the proceedings in this file shows that this particular case was being handled by Mwangi Njoroge who was then working in the litigation department of the State Law Office but is now a judge of the Environment and Land Court. During the hearing of the Plaintiff’s witness, he was not present. He was in another court handling a Constitutional Petition. An attempt by a counsel who held his brief to adjourn the case was rejected. The case had to proceed in his absence. He only came in at cross-examination stage.

15. The dispute herein also dated back to over a quarter a century and when one says that it took time to get documents, no one can doubt this. Besides this, there were attempts to settle the matter out of court which settlement was not forthcoming. The 30 days period was give on 12th March 2014. The defendants through Mwangi Njoroge have deponed that some documents were given to the Plaintiff’s counsel well before the case started and that it is only some documents which were filed outside the time given. These averments have not been controverted as there was no replying affidavit.

16. I have gone through the court file but I cannot see a defence by the defendants. Even the statements and documents which were filed albeit out of the time given are not in the file. There is only a memo of appearance by the defendants. However, be that as it may, I have no doubt that a defence was filed and the documents filed because that has not been denied. For the short time I have been at Milimani Courts, I have noticed that there is serious problem with filing of documents. Either the documents are not placed in the file or they are removed from file. This is however an observation which I hope will be addressed administratively.

17. The documents complained of were filed just four months outside the timelines given. There was no inordinate delay in the circumstances given that the counsel themselves wanted to find an amicable way of curing this. I have considered the three cases relied on by the Plaintiff’s advocate. There is no single case with circumstances such as the present one. In the present case, the defendants filed some of their documents before the plaintiff closed its case. This is unlike Nairobi HCCC No.1490 of 1999. P.H.Ogola Onyango T/A Pittsconsult Consulting Engineers Vs Daniel Githegi T/A Quantalysis where the defendant had sought to introduce documents after closure of the plaintiff’s case and several years later. The same is true of Eldoret ELC No. 975 of 2012 Johana Kipkemei Too Vs Hellen Tum where the defendant sought to introduce a document and three more witnesses in support of her case after the plaintiff had closed her case and after she herself had testified. Justice Munyao rightly observed that each case has to be considered based on its circumstances.

18. My decision in Kitale ELC No. 116 of 2013, between Susan Chapatet Lokwangi and Powon Lokwang Komolmoi is also distinguishable. In this case the plaintiff sought to rely on documents which had been filed in Court without leave of court, and also sought to introduce a witness who was not in her list of witnesses. This is unlike the present case where the defendants had been allowed to file their documents but they failed to do so within the stipulated time.The defendants’ failure to file the documents in time has been sufficiently explained.

CONCLUSION

19. I find that the preliminary objection has no merit in the circumstances. I overrule the same. On the other hand, I find that the defendants Notice of Motion dated 5th April 2016 has merits. The same is allowed in terms of prayer (2) and (3). The extension sought in prayer (2) is limited to 30 days from the time this Ruling is brought to the attention of the Attorney General’s Office as they were not present when the date of the Ruling was taken. Each party to bear their own costs.

It is so ordered.

Dated, Signed, and delivered at Nairobi this 9thday of February, 2017.

E.O.OBAGA

JUDGE

In the presence of:-

………………………………..Applicant

………………………………Respondent

…………………………...Court Assistant

E.O.OBAGA

JUDGE