[2022] KEELC 656 (KLR)
The court found that the plaintiff had failed to comply with its earlier order to file additional documents within seven days and had not provided a satisfactory explanation for the delay. However, considering the age of the matter and the need to serve the ends of justice, the court exercised its discretion to...
Source-derived case information.
- Citation
- [2022] KEELC 656 (KLR)
- Parties
- Plaintiff: James Kimathi Muthui (Suing as the legal representative of the Estate of Eutychus Muthui (Deceased)); Defendant: Ntibuka M’Mburugu M’Iburi; Defendant: Consolata M’Burugu; Defendant: Joseph Gaturu; Defendant: Lawrence M’Mburugu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 210 of 2016
- Procedural Posture
- Land and Property Suit / Interlocutory Application Ruling on Late Filing of Documents
- Outcome
- Application for late filing of documents allowed with conditions.
- Legal Topics
- Late Filing of Documents, Compliance With Court Orders, Admissibility of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Kimathi Muthui (Suing as the legal representative of the Estate of Eutychus Muthui (Deceased))
Plaintiff
Ntibuka M’Mburugu M’Iburi
Defendant
Consolata M’Burugu
Defendant
Joseph Gaturu
Defendant
Lawrence M’Mburugu
Defendant
Procedural Posture
Land and Property Suit / Interlocutory Application Ruling on Late Filing of Documents
Legal Issues
- 1 Whether the plaintiff should be allowed to file additional documents out of time contrary to previous court orders.
- 2 Whether the documents filed by the plaintiff exceed the scope of the court's earlier leave.
- 3 Whether non-compliance with court orders warrants expunging the documents from the record.
Ratio Decidendi
The court found that the plaintiff had failed to comply with its earlier order to file additional documents within seven days and had not provided a satisfactory explanation for the delay. However, considering the age of the matter and the need to serve the ends of justice, the court exercised its discretion to allow the late filing of the documents. The court balanced the interests of both parties by granting the defendants leave to file any rival documents within thirty days and directed that the matter be set down for hearing within ninety days, failing which the suit would stand dismissed for non-prosecution. The court emphasized the importance of compliance with its orders but...
Court Disposition
Application for late filing of documents allowed with conditions.
Orders
- Plaintiff is allowed to file the additional documents out of time.
- Defendants are granted 30 days to file any rival documents to those filed by the plaintiff.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 210 OF 2016
JAMES KIMATHI MUTHUI (Suing as the legal representative of the Estate of
EUTYCHUS MUTHUI (Deceased) ............................. PLAINTIFF
VERSUS
NTIBUKA M’MBURUGU M’IBURI ................. 1ST DEFENDANT
CONSOLATA M’BURUGU ................................ 2ND DEFENDANT
JOSEPH GATURU ............................................... 3RD DEFENDANT
LAWRENCE M’MBURUGU ...............................4TH DEFENDANT
RULING
1. Through a ruling dated 8. 12. 2021 the court allowed an application for the filing of three additional documents within 7 days and the matter to be listed for hearing within 45 days. Parties took a mention date for 21. 2.2022 to confirm compliance of the above orders.
2. Mr. Orimbo advocate appeared for the plaintiff and submitted that they had not complied with the court order since his client had been bedridden. Later at 1. 30 p.m. Miss Mbogo advocate for the defendants told the court she had been served with a list of documents dated 26. 2.2022 which was not in compliance with the court orders since the documents listed as No. 1, 2 and 3 were new documents. Therefore, she prayed the documents be expunged from the court record for they were not contemplated in the application dated 21. 3.2019.
3. Mr. Orimbo advocate responded and submitted the documents were very vital to his client’s case and hence prayed that the court allows for the late filing of the documents since the defendants shall have an opportunity to cross-examine.
4. Miss Mbogo advocate took the view that when the court gave directions, it was on the basis of what was disclosed then but it appeared the plaintiff has widened his scope after the ruling and sought to add more documents than was allowed.
5. The plaintiff filed a list of documents dated 2. 11. 2016 and took the witness stand on 20. 1.2019.
6. By an application dated 21. 3.2019, the plaintiff sought to reopen the suit and produce a mutation form for L.R Nyaki/Kithoka/474, a registered copy of records for 1574 and a notifications for sale.
7. This court allowed the request and ordered that the documents be filed and served within 7 days.
8. The plaintiff did not comply with the order within 7 days and has given no explanation for non-compliance. Instead, on 21. 2.2022, the plaintiff filed a list of documents dated 21. 2.2022 with 5 items namely:- letters dated 10. 1.2020, 22. 1.2020 he wrote to Chief Magistrate Meru seeking for judgment in Meru CMCC No. 61 of 1987, Gazette Notice No. 1945, copy of register for Nyaki/Kithoka/1574 and a mutation form.
9. In my view, it is apparent the plaintiff is out to endlessly delay this matter by failing to comply with court orders.
10. For the ends of justice to be met and given the age of the matter, I allow the filing and direct the matter to be listed for hearing within 90 days failure of which it shall stand dismissed for non-prosecution. The defendant shall be granted an opportunity to file any rival documents to the ones filed by the plaintiff within 30 days from the date hereon.
11. Orders accordingly.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU
THIS 23RD DAY OF MARCH, 2022
In presence of:
Orimbo for plaintiff – present
Miss Mbogo for defendants – present
Court Assistant - Kananu
HON. C.K. NZILI
ELC JUDGE