[2022] KEELC 1710 (KLR)
The court found that the objection to the late production of the NEMA report was not merited because the plaintiffs had previously indicated their intention to rely on the report by listing it in their documents as early as 2018. The plaintiffs' case was still open, and the defence retained the right to...
Source-derived case information.
- Citation
- [2022] KEELC 1710 (KLR)
- Parties
- Plaintiff: Hiram Ngugi Thimba; Plaintiff: John Kamau Mungai; Defendant: County Government of Kiambu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1408 of 2013
- Procedural Posture
- Environment and Land Case / Interlocutory Objection to Production of Document
- Outcome
- Objection dismissed; NEMA report admitted subject to cross-examination.
- Judges
- LN Mbugua
- Legal Topics
- Admissibility of Evidence, Late Filing of Documents, Trial Procedure, Cross Examination, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hiram Ngugi Thimba
Plaintiff
John Kamau Mungai
Plaintiff
County Government of Kiambu
Defendant
Procedural Posture
Environment and Land Case / Interlocutory Objection to Production of Document
Legal Issues
- 1 Whether the NEMA report served late by the plaintiffs should be admitted into evidence despite being served outside the prescribed timelines.
- 2 Whether the defendant will suffer prejudice if the report is admitted at this stage.
- 3 Whether the court should exercise its discretion to allow the late production of documents in the interest of substantive justice.
Ratio Decidendi
The court found that the objection to the late production of the NEMA report was not merited because the plaintiffs had previously indicated their intention to rely on the report by listing it in their documents as early as 2018. The plaintiffs' case was still open, and the defence retained the right to cross-examine the plaintiffs' witnesses on the report. The court emphasized that procedural rules should not override substantive justice, and that the court has discretion to admit documents served outside the prescribed timelines, especially where no express order invalidates them and the opposing party is not unduly prejudiced. The court concluded that the interests of justice favored...
Court Disposition
Objection dismissed; NEMA report admitted subject to cross-examination.
Orders
- The objection to the production of the NEMA report is dismissed.
- The NEMA report may be adduced in evidence subject to cross-examination of any of the plaintiffs' witnesses on the said report.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CASE NO. 1408 OF 2013
HIRAM NGUGI THIMBA..................................................................1ST PLAINTIFF
JOHN KAMAU MUNGAI.................................................................2ND PLAINTIFF
VERSUS
COUNTY GOVERNMENT OF KIAMBU.............................................DEFENDANT
RULING
1. This matter was listed for hearing on 8. 12. 2021 when defence counsel raised an objection to production of the NEMA report on the basis that the same was served upon them just few days earlier on 6. 12. 2021. Plaintiff’s Counsel defended the move of availing the report at this stage averring that the report had not been ready but it was listed as item No. 12 in their bundle.
2. I have considered all the arguments advanced herein. I have also perused the record. In the case of Isiolo Stage View Enterprises v Isiolo County Governemnt & 2 Others (2018)eKLR, I stated thus;
“The purpose of giving timelines of events is not geared towards locking out evidence. Further, it must be noted that documents filed outside the given timelines are not necessarily invalidated by non-compliance, unless there is an express order to that effect. The documents can be admitted by the court if a basis is laid for their admission………
The court also has a constitutional mandate to ensure that cases are heard expeditiously. Article 159 (2) (b) of the constitution states that “justice shall not be delayed……….
The ultimate goal is to dispense substantive justice”
3. In Esther Wambui Njengo v Harrison Mwangi Nyota &2 Others (2018) eKLR, Munyao J stated that;
“Strictly speaking therefore, parties are supposed to avail their evidence in advance, before the commencement of trial. The purpose of these provisions is to prevent a litigant from continuing with the suit, without the knowledge of what evidence the other party intends to bring, and are aimed at preventing trial by ambush. However, these are trial directions in subsidiary legislation and it should not be forgotten that under Article 159 (2) (d) of the Constitution, the court is enjoined to ensure that justice is not sacrificed at the altar of procedural technicalities. The court does indeed have discretion in the interests of justice, to allow a party to rely on documents or statements which had not been discovered before. At the end of the day, the court has to weigh where the scales of justice tilt. Generally though, the more advanced the litigation, the more difficult it may be for the court to allow a party to introduce documents and new witnesses to the suit”.
4. In the instant suit, the Plaintiff’s Case is yet to be closed, thusthe defence has an opportunity to challenge the said document on the platform of cross-examination. To this end, the defence is at liberty to recall any of the Plaintiff’s witnesses for such cross-examination.
5. Further, it is not lost to this court that the said report is already itemized as No. 12 in Plaintiff’s list of documents dated 13. 3.2018. Thus the intention to rely on such a report had been expressed by the Plaintiff much earlier in the year 2018. I have also come across the ruling of this court dated 29. 10. 2014 in which NEMA has been mentioned.
6. In light of the foregoing analysis, I find that the objection is not merited and the same is hereby dismissed. The report can be adduced subject to cross-examination of any of the Plaintiff’s witnesses on the said report.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 2ND DAY OF FEBRUARY, 2022 THROUGH MICROSOFT TEAMS.
LUCY N. MBUGUA
JUDGE
In the presence of:-
Ochieng holding brief for Mungai for the Plaintiff
Court Assistant: Eddel Barasa