[2025] KEELC 477 (KLR)

Kosgey & another v Kosgey & 3 others (Environment & Land Case E022 of 2023) [2025] KEELC 477 (KLR) (5 February 2025) (Ruling)

Neutral citation: [2025] KEELC 477 (KLR)

Republic of Kenya

In the Environment and Land Court at Kapsabet

Environment & Land Case E022 of 2023

GMA Ongondo, J

February 5, 2025

Between

William Kipchumba Kosgey

1st Plaintiff

Wilson Kipkemboi Kosgey

2nd Plaintiff

and

Peter Kipchirchir Kosgey

1st Defendant

Albina Gichuku Kosgey

2nd Defendant

The Land Registrar Nandi County

3rd Defendant

The Attorney General

4th Defendant

Ruling

1. The present ruling originates from an application by Mr Francis Murgor learned counsel for the plaintiffs to call the 3rd defendant to produce documents specified in the notice to produce documents dated 25th April 2024 under, inter alia, section 22 (a) and (b) of the Civil Procedure Act Chapter 21 Laws of Kenya.

2. Mr Murgor has premised the application on the grounds that;a.The notice to produce documents was duly served on all the defendants.b.Summons not served on the 3rd defendant to produce documents to be relied upon by the plaintiffs.c.The 3rd defendant will be a common witness herein.d.Hearing of the plaintiffs’ case proceed todaye.The plaintiffs’ case be closed tomorrow after the testimony of the 3rd defendant.

3. Mr Simiyu learned counsel for the 1st and 2nd defendants has objected to the application and urged that the plaintiffs’ case be closed on the grounds thus;a.Hearing of the suit had been adjourned previously at the instance of the plaintiffs’ counsel who was condemned to pay costs.b.The plaintiffs’ counsel did not take action to procure attendance of the 3rd defendant to testify.

4. Mr Kwame learned counsel for the 3rd and 4th defendants associated himself with the objection raised by learned counsel for the 1st and 2nd defendants. He stated in part-a.That he intends to call the 3rd defendant for further hearing tomorrow andb.The plaintiffs’ counsel will be at liberty to cross examine the 3rd defendant on the documents contained in the notice duly served herein.

5. By his rejoinder, learned counsel for the plaintiffs reiterated that the 3rd defendant who is a common witness is duty bound to produce public documents as per the notice issued and served under Order 11 Rule 3 (2) (b) of the Civil Procedure Rules 2010, section 22 (a) (supra), access to information and the Constitutional provisions. Counsel stated that the case had been adjourned previously as the 1st and 2nd defendants counsel sought to introduce amended defence and counterclaim. That today’s date was taken by a counsel who held his brief

6. So, is the application meritorious?

7. It is not in dispute that the notice to produce documents was served on the 3rd defendant to give evidence thereof.

8. Further, it is common ground that the suit is listed for hearing today and tomorrow in the spirit of Article 159 (2) (b) of the Constitution of Kenya 2010 which reads;Justice shall not be delayed

9. Today, the court has substantially heard the plaintiffs’ case.

10. Notably, public documents are listed in the notice to produce documents served on the 3rd defendant, a public officer.

11. In the spirit of Articles 50 (1), 25 (c). 48 and 159 (2) (b) of the Constitution of Kenya 2010, the applicants have the fundamental right to call the 3rd defendant pursuant to the notice to produce documents duly served herein; see James Kanyiita Nderitu and another-vs-Marios Philotas Ghikas and another (2016) eKLR.

12. In the premises, the application is merited and the same is hereby allowed accordingly.

13. It is so ordered.

DATED AND DELIVERED AT KAPSABET THIS 5TH DAY OF FEBRUARY 2025HON. G .M .A ONGONDOJUDGEPresent;Mr F. Murgor learned counsel for the plaintiffsMr Simiyu learned counsel for the 1st and 2nd defendantsMr Kwame learned counsel for the 3rd and 4th defendantsWalter, court assistant