[2017] KEELC 609 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CASE NO.319 OF 2013

JOSEPH OWITI ODEMA.............................................................................................................PLAINTIFF

VERSUS

JAMES OKOKO KADU ..............................................................................................................DEFENDANT

RULING

1. By notice of motion dated 9th May 2017, James Okoko Kadu, the Defendant, seeks for leave to file and serve a certified english translation of the land sale agreement of 1979, which is in dholuo language and already filed. The Defendant also seeks to have the evidence of one Vitalis Mwatete Orwya taken and preserved. The application is based on six grounds marked (a) to (f) and supported by the affidavit sworn by James Okoko Kadu on the 9th May 2017.

2. The application is opposed by Joseph Owiti Odema, the Plaintiff, through the replying affidavit sworn by the said Plaintiff on the 29th May 2017.

3. The application came up for hearing on the 10th May 2017 when Mr. Siganga and Mr. Baganda, learned counsel for the Defendant and Plaintiff respectively, agreed to file written submissions. The counsel for the Defendant filed their submission dated 23rd May 2017 while counsel for the plaintiff filed theirs dated 17th August 2017.

4. The issues for determination by the court are as follows;

a) Whether the Defendant has made a reasonable case for filing of new document after the Plaintiff’s case has been closed.

b) Whether reasonable grounds have been laid out for taking of the named witness’ evidence.

c) Who pays the costs.

5. The court has clearly considered the grounds on the notice of motion, affidavit evidence by both sides, the written submissions by counsel, the record and come to the following determinations;

a) That has admitted by both parties in their affidavits and confirmed by the proceedings of 13th December 2016, the Defendant has been aware that the dholuo language sale agreement had been declined to be refered to in the absence of a translation into the court’s language and the certificate thereof being provided.

b) That the Plaintiff testified was cross-examined and re-examined on the same date, the 13th December 2016, after which his case was closed. Thereafter the defence case was fixed for 10th May 2017.

c) That the Notice of motion, subject matter of this ruling, was filed on 9th May 2017 which was the day before the defence hearing. That on that day of defence hearing, the counsel for the defence applied for adjournment to allow the serving of the notice of motion, its hearing and determination before the defence hearing could commence. Though counsel for the Plaintiff vehemently opposed the application for adjournment, the same was granted with the court observing that the filing of the notice of motion only a day to the hearing date was a way of forcing the court to adjourn the hearing. This observation was based on the fact that the Defendant had known that the matter was coming on that day for defence hearing since 13th December 2016, when the date was fixed, yet they had not found it necessary and courteous to have filed and prosecuted their application before the defence hearing date.

d) That having considered the superior courts decisions cited by both counsel in their written submissions, the court is of the view that to allow the filing of fresh documents at this stage of the proceedings would prejudice the Plaintiff who has already closed his case.

e) That the requirements that parties do file their statements and documents with their pleadings under Order 11 of Civil Procedure Rules is aimed for, among others, to allow the other party prepare in advance before the commencement of the hearing. That the Plaintiff having closed his case knowing that the dholuo sale agreement document would not be used as exhibit would miss the opportunity to effectively respond to the intended translation and certificate.

f) That there is no need to take the evidence of the named witness for preservation as the case is already at the defence hearing stage. The defence hearing could have commenced on the 10th May 2017 had the Defendant’s counsel not applied for adjournment. That after another defence hearing date is fixed, the defence counsel will be at liberty to move the court to take the evidence of that witness on the first day of the hearing if the defence hearing is likely to take long.

6. The court has in view of the findings above, come to the conclusion that the Defendant’s notice of motion dated 9th May 2017 has no merit and is hereby dismissed with costs.

Orders accordingly.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

DATED AND DELIVERED THIS 29TH DAY OF N0VEMBER 2017

In presence of;

Plaintiff Absent

Defendant Absent

Counsel Mr. Kowino for Onyango for Plaintiff

Mr. Anule for Omollo for Defendant

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

29/11/2017

29/11/2017

S.M. Kibunja Judge

Parties absent

Mr. Kowino for Onyango P.D. for the Plaintiff

Mr. Anule for Omollo for the defendant.

Court: Ruling dated in open court in the presence of Mr. Kowino for Onyango for Plaintiff and Mr. Anule for Omollo for Defendant.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

29/11/2017