[2019] KEELC 183 (KLR)
The court found that the 2nd defendant had not provided valid grounds for the delay in filing documents, noting a pattern of improper conduct and lack of candour in previous applications. The court emphasized that the litigation had reached an advanced stage, with the plaintiff and one defendant having closed their...
Source-derived case information.
- Citation
- [2019] KEELC 183 (KLR)
- Parties
- Plaintiff: Ethics & Anti Corruption Commission; Defendant: Wilson Gacanja; Defendant: William Kipserem Busienei; Defendant: Industrial & Commercial Development Corporation; Defendant: Dr. Arthur Mbulika Usagi; Defendant: Elizabeth Wanjiru Usagi; Defendant: Joyce Kanaga Andembe
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 46 of 2010
- Procedural Posture
- Ruling / Application for Leave to File Documents Out of Time
- Outcome
- application dismissed
- Judges
- FM Njoroge
- Legal Topics
- Late Filing of Documents, Leave of Court, Case Management, Prejudice to Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ethics & Anti Corruption Commission
Plaintiff
Wilson Gacanja
Defendant
William Kipserem Busienei
Defendant
Industrial & Commercial Development Corporation
Defendant
Dr. Arthur Mbulika Usagi
Defendant
Elizabeth Wanjiru Usagi
Defendant
Joyce Kanaga Andembe
Defendant
Procedural Posture
Ruling / Application for Leave to File Documents Out of Time
Legal Issues
- 1 Whether the 2nd defendant should be granted leave to file documents out of time.
- 2 Whether the 2nd defendant has provided valid grounds for the delay in filing documents.
- 3 Whether granting leave would prejudice the other parties or delay the conclusion of the case.
Ratio Decidendi
The court found that the 2nd defendant had not provided valid grounds for the delay in filing documents, noting a pattern of improper conduct and lack of candour in previous applications. The court emphasized that the litigation had reached an advanced stage, with the plaintiff and one defendant having closed their cases, and that granting leave would likely prejudice other parties and cause unnecessary delay. The court invoked the public interest in finality of litigation and determined that the application was a tactic to delay proceedings. Consequently, the application for leave to file documents out of time was denied, and the hearing was ordered to proceed without further documents...
Court Disposition
application dismissed
Orders
- The application by the 2nd defendant for leave to file documents out of time is denied.
- The hearing shall proceed without any further documents being filed by any party.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KITALE
ELC NO. 46 OF 2010
ETHICS & ANTI CORRUPTION COMMISSION.........................................................PLAINTIFF
VERSUS
WILSON GACANJA................................................................................................1ST DEFENDANT
WILLIAM KIPSEREM BUSIENEI......................................................................2ND DEFENDANT
INDUSTRIAL & COMMERCIAL DEVELOPMENT CORPORATION........3RD DEFENDANT
DR. ARTHUR MBULIKA USAGI........................................................................4TH DEFENDANT
ELIZABETH WANJIRU USAGI..........................................................................5TH DEFENDANT
JOYCE KANAGA ANDEMBE.............................................................................6TH DEFENDANT
RULING
1. The 2nd defendant prays for leave to file his documents in the matter. Ms. Mwemeke informs the court that she was appointed only 2 weeks ago and upon perusal she has found that the documents were not filed. On 29/1/2019, this court granted the 2nd defendant leave to file a defence, after he applied formally to court, alleging non-service of the summons upon him as the basis for non-filing of the defence.
2. The unsavoury history of the 2nd defendant’s dalliance with a number of law firms, purportedly appointed to represent him in the matter, some on the eves of the hearing of this matter, is outlined in paragraph 2 of that ruling. Now Ms. Mwemeke has joined the long and still growing list of those advocates and her recent appointment forms a seductive ground for the granting of leave to file fresh documents in this matter on behalf of the 2nd defendant, a feat which the 2nd defendant’s erstwhile counsel failed to achieve during their brief stints.
3. This court has already pronounced the 2nd defendant’s conduct in this suit to be improper during the earlier stages of this litigation and, worse still, it found that he had no valid ground for failure to file a defence. It also found the 2nd defendant to be less than candid in his allegation of non-service in the ruling dated 29/1/2019.
4. Besides, all the above, in today’s application quite valiantly put forward by Ms. Mwemeke, there is a dearth of evidence of existence of valid grounds as to why documents, which have not been expressed to be expert reports, were not filed together with the defence as required on 12/2/2019.
5. Furthermore not only has the plaintiff closed his case but one of the defendants too. It can only be imagined with not so little trepidation the extent of retrogression the granting of Ms. Mwemeke’s request would bring in this litigation. No person may predict with any measure of certainty which of the parties may be prejudiced by such an order sufficiently to galvanize them into applying for the reopening of their respective cases, and after that, how long it would take to conclude this old matter.
6. In this matter, all the parties can see the possible end of the process as at the present. It is not a proper thing for the 2nd defendant to fail to even allow the other parties to have sight of his secret weapons that may, if blindly allowed, wreak mass destruction on their cases. I must say that the greatest failure of the 2nd defendant is in failing to disclose what he wishes to produce as evidence in future in the matter, and the other parties, are held at ransom, unable to consent, waiting with bated breath for this court’s decision.
7. I find this application to be quite another ruse from the 2nd defendant’s repertoire calculated at halting the onward march of this litigation to its denouement. The maxim interest republicae ut sit litium finis must find its rightful place of implementation in this litigation and that will be effected by a denial of Ms. Mwemeke’s application.
8. I therefore deny the said application and I order the hearing to proceed without any further documents being filed by any party.
Dated, signed and delivered at Kitale on this 25th day of November, 2019.
MWANGI NJOROGE
JUDGE
25/11/2019
Coram:
Before - Hon. Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Mokua for plaintiff
N/A for the 1st defendant
Ms. Mwemeke for 2nd defendant
Mr. Khakula for 3rd defendant
Mr. Bisonga for 4th 5th and 6th defendants
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
25/11/2019