[2024] KEELC 4036 (KLR)
The application by the 1st Defendant to call an expert witness was dismissed because neither party complied with the court's directions to file responses and submissions within the set timelines. The court emphasized that compliance with procedural directions is mandatory, and failure to do so justifies dismissal of...
Source-derived case information.
- Citation
- [2024] KEELC 4036 (KLR)
- Parties
- Plaintiff: Antonella Grimaldi; Defendant: Itakey Investments Limited; Defendant: Gimalowi Company Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 154 of 2017
- Procedural Posture
- Environment and Land Case / Ruling on Interlocutory Application
- Outcome
- application dismissed for want of compliance with court directions
- Judges
- FM Njoroge
- Legal Topics
- Leave to Call Expert Witness, Non Compliance With Court Directions, Expert Evidence, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Antonella Grimaldi
Plaintiff
Itakey Investments Limited
Defendant
Gimalowi Company Limited
Defendant
Procedural Posture
Environment and Land Case / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the 1st Defendant should be granted leave to call Mr. Kiarie Kariuki as an expert witness.
- 2 Whether the application should be dismissed for non-compliance with court directions.
Ratio Decidendi
The application by the 1st Defendant to call an expert witness was dismissed because neither party complied with the court's directions to file responses and submissions within the set timelines. The court emphasized that compliance with procedural directions is mandatory, and failure to do so justifies dismissal of the application regardless of its merits. The court found no response or submissions on record and accordingly dismissed the application for want of compliance.
Court Disposition
application dismissed for want of compliance with court directions
Orders
- The 1st Defendant's application dated 1st March 2024 is dismissed for want of compliance with court's directions.
Full Case Text
Judgment text and source record
22 paragraphs
Grimaldi v Itakey Investments Limited & another (Environment & Land Case 154 of 2017) [2024] KEELC 4036 (KLR) (20 May 2024) (Ruling)
Neutral citation: [2024] KEELC 4036 (KLR)
Republic of Kenya
In the Environment and Land Court at Malindi
Environment & Land Case 154 of 2017
FM Njoroge, J
May 20, 2024
Between
Antonella Grimaldi
Plaintiff
and
Itakey Investments Limited
1st Defendant
Gimalowi Company Limited
2nd Defendant
Ruling
1. The 1st Defendant’s notice of motion application dated 1st March 2024 seeks the following orders: -a.That the 1st Defendant be granted leave to call Mr. Kiarie Kariuki as an expert witness in this matter.b.That necessary directions be made.c.That the costs of this application be in the cause.
2. This application was premised on the grounds outlined on the face of it and supported by the affidavit sworn by Antonella Braccini on 1st March 2024 who deposed that the determination of the real controversy in this case depends on the interpretation of a private deed of agreement dated 29th September 2013 between and 1st and 2nd Defendants herein and a court order issued on 30th April 2014 in Mombasa High Court Commercial Case No. 135 of 2013 (OS), between the Defendants herein as the Plaintiffs and Kenya Commercial Bank as the defendant therein ( herein after referred to as “the Mombasa case”); that the intended expert witness, Mr. Kiarie Kariuki was the advocate representing the Defendants herein in the Mombasa case and that he drafted the said private deed agreement.
3. According to Antonella, the 1st Defendant’s advocates inadvertently forgot to include Mr. Kiarie Kariuki as a witness when they filed the 1st Defendant’s amended statement of defence.
4. When the application came up for directions on 7th March 2024, this court directed the Respondent to respond to the application within 7 days; and submissions be filed by the 1st Defendant/applicant and Respondent within 14 and 21 days respectively. These timelines were to run concurrently, meaning that the same has since lapsed. I have perused the court’s records and I do not find any response or written submission filed by either party.
5. In the circumstances, the application dated 1/3/24 is hereby dismissed for want of compliance with court’s directions.
DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 20TH DAY OF MAY 2024. MWANGI NJOROGEJUDGE, ELC, MALINDI