[2023] KEELC 20521 (KLR)
The court found that although the applications for summoning additional witnesses and adjournment were made late in the proceedings, it would allow them strictly on the condition that the officers to be summoned from the National Land Commission and Ministry of Lands must have their statements recorded, filed, and...
Source-derived case information.
- Citation
- [2023] KEELC 20521 (KLR)
- Parties
- Plaintiff: City Council of Nairobi; Defendant: Joel Kani Ole Sikamoi; Defendant: Board of Management of Garden Estate Secondary School; Defendant: Board of Management of Garden Estate Primary School
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 392 of 2008
- Procedural Posture
- Environment and Land Case / Interlocutory Application for Witness Summons and Adjournment
- Outcome
- Applications for summons to National Land Commission and Ministry of Lands officers allowed with strict conditions.
- Judges
- LN Mbugua
- Legal Topics
- Summoning Witnesses, Trial Management, Adjournment, Trial Bundles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
City Council of Nairobi
Plaintiff
Joel Kani Ole Sikamoi
Defendant
Board of Management of Garden Estate Secondary School
Defendant
Board of Management of Garden Estate Primary School
Defendant
Procedural Posture
Environment and Land Case / Interlocutory Application for Witness Summons and Adjournment
Legal Issues
- 1 Whether the court should grant summons to officers from the National Land Commission and Ministry of Lands to testify.
- 2 Whether the applications for adjournment and summoning of witnesses amount to trial by ambush.
- 3 Whether the parties have complied with previous court directions regarding trial bundles and evidence.
Ratio Decidendi
The court found that although the applications for summoning additional witnesses and adjournment were made late in the proceedings, it would allow them strictly on the condition that the officers to be summoned from the National Land Commission and Ministry of Lands must have their statements recorded, filed, and served within 30 days. If this is not done, the applications to summon the witnesses will stand dismissed. The court emphasized that it abhors trial by ambush and that all parties must comply with procedural requirements to ensure fairness. The responsibility for effecting service of the summons lies with the applicants, and no further adjournments will be granted at their...
Court Disposition
Applications for summons to National Land Commission and Ministry of Lands officers allowed with strict conditions.
Orders
- Officers to be summoned must have their statements recorded, filed, and served within 30 days, failing which the applications to summon them shall stand dismissed.
- Summons to issue to officers from the National Land Commission and Ministry of Lands as prayed, with particulars to be provided by counsel.
Full Case Text
Judgment text and source record
27 paragraphs
City Council of Nairobi v Sikamoi & 2 others (Environment & Land Case 392 of 2008) [2023] KEELC 20521 (KLR) (5 October 2023) (Ruling)
Neutral citation: [2023] KEELC 20521 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 392 of 2008
LN Mbugua, J
October 5, 2023
Between
City Council of Nairobi
Plaintiff
and
Joel Kani Ole Sikamoi
1st Defendant
Board of Management of Garden Estate Secondary School
2nd Defendant
Board of Management of Garden Estate Primary School
3rd Defendant
Ruling
1. This matter is partly heard and was scheduled for hearing on October 2, 2023 when evidence in the case of the 2nd plaintiff in the file 1057/2016 was taken. Counsel Mengitch then sought for an adjournment in order to have summons issued to National Land Commission to verify the issues of Review and a site visit.
2. The application was supported by counsel Nyang’ for the 1st defendant in case No 392/2008.
3. M/s Kerubo for the 2nd & 3rd defendants in case No 1057/2016 opposed the suit averring that the complaint was lodged at National Land Commission when the matter was already in court. Counsel Nyareso for the plaintiff in case No 392/2008 associated herself with the sentiments of M/s Kerubo.
4. In rejoinder, Counsel Mengitch averred that they desire to call the aforementioned personnel out of abundance of caution in order to unravel the dispute at hand.
5. Counsel Kemunto also made an oral application seeking summons to the Director of Land administration Ministry of Lands to testify on the nature of allocation of the suit property.
6. I find that this case is partly heard. On February 25, 2022 a witness (PW1) was stood down primarily because the parties/advocates had not put their houses in order in terms of indicating the nature of evidence to be availed and how this was to be done. The court gave directions that documents which shall not be captured in the respective Trial Bundles shall stand as expunged.
7. More than a year down the line, some parties/advocates (read Mr Mengitch and M/s Kerubo) are now making applications to avail particular witnesses. This is court abhors any practice that boarders on trial by ambush.
8. Nevertheless, the court will allow the applications on the following strict terms;i.That the officers to be summoned at National Land Commission and the Ministry of Lands must have their statements recorded, filed and served within 30 days from today otherwise the applications to summon the said witnesses shall stand as dismissed.ii.That summons are to issue to the officer(s) from the National Land Commission and Ministry of Lands as prayed by Mr. Mengitch and M/s Kerubo but the said counsels shall avail the actual particulars of the aforementioned officers.iii.That Mr. Mengitch and M/s Kerubo shall undertake the responsibility of effecting service of the said summons.iv.That the case shall not be adjourned at the instance of Mr Mengitch or M/s Kerubo or due to unavailability of the aforementioned witnesses from the National Land Commission and or the Ministry of Lands.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 5THDAY OF OCTOBER, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Nyareso for the plaintiff in 392 of 2008Kerubo for 2nd and 3rd Defendant in 392 of 2008 and for 2nd Defendant in 1057 of 2016Mengitch for 2nd Plaintiff in 1057 of 2016 and holding brief for M/s Nyang in 1057 of 2016 and for 1st Defendant in 392 of 2008Court Assistant: Eddel