[2019] KEELC 4645 (KLR)
The court held that since the matter was directed to proceed by viva voce evidence, the originating summons and replying affidavit were to be treated as plaint and defence respectively. No further directions were given regarding filing of separate lists of documents. The defendants, now presenting their case, are...
Source-derived case information.
- Citation
- [2019] KEELC 4645 (KLR)
- Parties
- Plaintiff: Damaris Wanjiru Mungai; Plaintiff: Luka Muguma Kibutha; Defendant: Macua Igogo; Defendant: Hinga Igogo; Defendant: Mwaura Igogo; Defendant: Ngugi Igogo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 346 of 2011
- Procedural Posture
- Civil Case / Ruling on Objection Regarding Production of Documents During Defence Case
- Outcome
- objection dismissed
- Judges
- LC Komingoi
- Legal Topics
- Production of Documents, Viva Voce Evidence, Originating Summons Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Damaris Wanjiru Mungai
Plaintiff
Luka Muguma Kibutha
Plaintiff
Macua Igogo
Defendant
Hinga Igogo
Defendant
Mwaura Igogo
Defendant
Ngugi Igogo
Defendant
Procedural Posture
Civil Case / Ruling on Objection Regarding Production of Documents During Defence Case
Legal Issues
- 1 Whether the defendants should be allowed to produce documents annexed to their replying affidavit during the defence hearing stage.
- 2 Whether the plaintiff would suffer prejudice if the defendants are allowed to produce the said documents.
Ratio Decidendi
The court held that since the matter was directed to proceed by viva voce evidence, the originating summons and replying affidavit were to be treated as plaint and defence respectively. No further directions were given regarding filing of separate lists of documents. The defendants, now presenting their case, are entitled to produce documents annexed to their replying affidavit. The plaintiff will not suffer prejudice as cross-examination on the documents will be allowed. The objection to the production of documents is therefore unmerited and dismissed in the interest of justice.
Court Disposition
objection dismissed
Orders
- The defendants are allowed to produce the documents annexed to their replying affidavit during the defence hearing.
- The plaintiff's objection to the production of the said documents is dismissed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CIVIL CASE NO. 346 OF 2011
DAMARIS WANJIRU MUNGAI......................1ST PLAINTIFF/APPLICANT
LUKA MUGUMA KIBUTHA............................2ND PLAINTIFF/APPLICANT
=VERSUS=
MACUA IGOGO......................................1ST DEFENDANT/RESPONDENT
HINGA IGOGO.......................................2ND DEFENDANT/RESPONDENT
MWAURA IGOGO..................................3RD DEFENDANT/RESPONDENT
NGUGI IGOGO......................................4TH DEFENDANT/RESPONDENT
DIRECTIONS AND/OR RULING
1. I have gone through the court record. This matter was commenced by way of originating summons. There is a replying affidavit sworn by the 1st defendant in which he annexed three documents. On the 27th July 2012 directions were taken that the originating summons be heard by way of viva voce evidence. In essence, this meant the originating summons was to be treated as a plaint and the replying affidavit a defence.
2. No further directions were taken as to the filing of a separate list of documents. The plaintiff in her evidence in Chief produced documents which were annexed to the originating summons as exhibits.
3. In her ruling, Hon. Lady Justice Gitumbi only stated that the defendants counsel could not cross examine on the documents at that stage as they had not been produced. In fact the reason given was that the defendants had not yet presented their case.
4. The defendants are now on the process of presenting their case, what better opportunity than now to produce these documents. It is in the interest of justice that the defendants be allowed to produce the said documents.
5. No prejudice will be occasioned to the plaintiff as the 1st defendant will be cross examined on the said documents. I find that the objection herein is found to be unmerited and the same is dismissed.
Dated, signed and delivered in Nairobi on this 11TH day of FEBRUARY 2019.
……………………….
L. KOMINGOI
JUDGE
In the presence of:-
Mr. Chege advocate for the plaintiff
Ms Mukeri holding brief for Gachomo advocate for the defendant
Court Assistant - Kajuju