Kalliste Limited v Bendera & 290 others (Environment and Land Case 509 of 2011) [2026] KEELC 3729 (KLR) (17 June 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MOMBASA** **ELC CASE NO. 509 OF 2011** **KALLISTE LIMITED ……………………………......…… PLAINTIFF** **VERSUS** **BAKARI BENDERA & 290 OTHERS ................ DEFENDANTS** **RULING** 1. By a Notice of Motion dated 28th October 2025, the 77th, 118th to 291 Defendants pray for leave to substitute three witnesses and to replace them with the name of Franco Mosomba, Ngochi Kitheka Julius and Moses Matete Nyongesa whose statements have been annexed to the application. 2. The application is supported by an affidavit sworn by Franco Mombasa (the 63rd Defendant) and is premised on the grounds; 3. **That the Plaintiffs herein have inordinately delayed prosecuting the case for 14 years;** 4. **That the Defendants lost touch with the first witness Mwavula Moti who was supposed to be the Defendant’s main witness;** 5. **That the second witness Joseph Kitile is dead;** 6. **That the third witness namely Manongo Chaga Muroisa has lost his mental acuity or sanity and cannot testify;** 7. **That the Defendants also lost touch with the fourth witness namely Enock Mogeni;** 8. **That the state of affairs is contributed to immensely by the Plaintiff’s delay or 14 years in prosecuting the matter; and** 9. **It is fair and just that the Defendants herein be given a chance to replace the witnesses and adduce evidence so that the case can be decided on merits.** 10. Kalliste Limited (the Plaintiff) is opposed to the application. In a Replying Affidavit sworn by its manager Monicah Muthami on 18th November 2025, the Plaintiff avers that on 21st July 2025, its witnesses testified and closed its case and that the Defendants/Applicants did not give an indication that their witnesses were unavailable. 11. The Plaintiff avers that the statements filed on behalf of Franco Musomba introduces fresh and impleaded facts which were never part of the Defendants’ defence such as references to certain cases to which the Plaintiff is said to have consented to. The Plaintiff avers that the issues raised in the 63rd Defendant’s statement are not new and that they ought to have been pleaded. The Plaintiff asserts that if the application is allowed, it will prejudice the Plaintiff as they have already closed their case. 12. The Plaintiff further avers that the Defendants have not demonstrated efforts to trace the witnesses they intend to substitute. In addition, the Plaintiff avers that no death certificate has been tendered and medical evidence to support the incapacity of the other two witnesses. It’s the Plaintiff’s case that the application is an attempt by the Defendants to deflect from their own inadequate defence. 13. I have carefully perused and considered both the application as well as the response thereto. I have similarly perused and considered the submissions and authorities placed before me by the Learned Advocates representing the parties. 14. By their application before the Court, the Defendants urge the Court to allow them to substitute their witnesses. It is their position that they have lost touch with two of their witnesses and that one of them is deceased while the other is nolonger mentally fit to testify. 15. The Plaintiff has opposed the application stating that it has already closed is case and that the statements of the new witnesses proposed by the Defendants raise new issues that shall prejudice its case. At paragraph 7 of the Replying Affidavit sworn on its behalf by its Manager Monicah Muthami, the Plaintiff avers as follows: **“7. Among the new issues improperly introduced are references to HCCC No. 226 of 2010 and HCCC No. 514 of 2011, including allegations regarding the Plaintiff’s consent in HCCC No. 226 of 2010 and the averments that the Plaintiff is relying on that consent to allegedly evict certain Defendants herein who were not parties to that suit. These matters were never pleaded by the Applicants in their defence, and their introduction at this stage is highly prejudicial to the Plaintiff. The Applicants have also not produced that consent as part of their documents or even in the Supporting Affidavit.”** 1. From my perusal of the record however the references to those suits and the consent said to have been recorded therein were not entirely new issues as purported by the Plaintiff. In their List of Documents dated 9th November 2015, the Defendants have listed the said suits as part of the material they wished to rely on at the trial. Again, in a Replying Affidavit sworn on behalf of the Defendants on 30th November 2017 in response to the Plaintiff’s Notice of Motion dated 25th November 2015, Fr. Gabriel Dolan has made extensive references to the said suits filed at the High Court at Mombasa. 2. Considering a similar matter in ***Lee & Another (Suing as the legal representative of the Estate of Richard Sednaoni – Deceased) –vs- Mulwa (Civil case No. E040, E039 and E041 of 2021 (Ruling)(Consolidated ) (2025) KEHC 3180 ( KLR ) ( Civ) ( 20 February 2025) ( Ruling )***, the Court herein held as follows; **“13. On the second limb of the application, the Plaintiffs seek leave to substitute a witness David S. Lee with Carole Sednaoni due to Mr. Lee’s unavailability. The Respondent opposed this request, noting that the statement of Carole Sednaoni has not been filed, making it impossible to assess its relevance or appropriateness. However, the applicants subsequently rectified this anomaly by filing the statement.** **14. Order 18 of Rule 3 of the Civil Procedure Rules grants the Court a wide discretion in the prosecution of evidence. Additionally, under Section 3A of the Civil Procedure Act, the Court has inherent powers to make any orders necessary to meet the ends of justice.** **15. In *Lucy Momanyi t/a L. N. Momani & Company Advocates –Vs- Joel Ombati Nyamweya & Kenya Power & Lighting Company Limited (2021) KEHC 13248 (KLR) and Meera Umoja Kenya Ltd –vs- David Gikaria & Another (2020) eKLR*, the Court allowed witness substitution recognizing that unforeseen circumstances may necessitate such charges”** 1. In the matter herein, I have gone through the witness statements of the proposed witnesses and compared the same with those of the earlier intended witnesses and it was clear to me that no new issues have been raised. The Plaintiff has not demonstrated any substantial prejudice that would arise from the substitution, particularly given the that they would have an opportunity to cross-examine the new witnesses. Conversely, denying the substitution would unfairly hinder the Defendants’ ability to present crucial evidence. 2. In the premise, I am persuaded that there is merit in the Motion dated 28th October 2025. I hereby allow the same in terms of prayer ‘b’. 3. The costs of the application shall be in the cause. **Ruling dated, signed and delivered in open court and virtually at Mombasa this 17th day of June, 2026.** **…………………………..** **J.O. OLOLA** **JUDGE** **In the presence of:-** 1. Ms. Firdaus Court Assistant 2. Mr. Kilonzo Advocate for the Plaintiff/Respondent 3. Mr. Jengo Advocate for the Defendants/Applicant