[2023] KEELC 20362 (KLR)
The court found that although the 3rd Defendant's statement and documents were filed after the close of pleadings, the Plaintiffs were served and had knowledge of the documents. There was no demonstrated prejudice to the Plaintiffs, and the court is obligated to do substantive justice rather than rely on...
Source-derived case information.
- Citation
- [2023] KEELC 20362 (KLR)
- Parties
- Plaintiff: Lucas Ouma Mabachi; Plaintiff: Henry Gabriel Mabachi; Plaintiff: Masiga Okumu James Lemmy; Defendant: The Land Registrar, Busia; Defendant: The Hon. Attorney General; Defendant: Benjamin Okello Sembe
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 28 of 2015
- Procedural Posture
- Environment and Land Case / Interlocutory Application (ruling on Expunging Documents)
- Outcome
- Application to expunge documents dismissed; documents remain on record.
- Judges
- BN Olao
- Legal Topics
- Late Filing of Documents, Expunging Evidence, Prejudice to Parties, Substantive Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucas Ouma Mabachi
Plaintiff
Henry Gabriel Mabachi
Plaintiff
Masiga Okumu James Lemmy
Plaintiff
The Land Registrar, Busia
Defendant
The Hon. Attorney General
Defendant
Benjamin Okello Sembe
Defendant
Procedural Posture
Environment and Land Case / Interlocutory Application (ruling on Expunging Documents)
Legal Issues
- 1 Whether the 3rd Defendant's statement and documents filed after the close of pleadings should be expunged from the record.
- 2 Whether the late filing prejudiced the Plaintiffs.
Ratio Decidendi
The court found that although the 3rd Defendant's statement and documents were filed after the close of pleadings, the Plaintiffs were served and had knowledge of the documents. There was no demonstrated prejudice to the Plaintiffs, and the court is obligated to do substantive justice rather than rely on technicalities. Therefore, the documents were allowed to remain on record, but the 3rd Defendant was ordered to pay costs to the Plaintiffs for the inconvenience caused by the late filing.
Court Disposition
Application to expunge documents dismissed; documents remain on record.
Orders
- The 3rd Defendant's statement and documents filed on October 4, 2023, are properly on record and served.
- The 3rd Defendant shall pay the Plaintiffs Kshs.5,000 as costs before the next hearing date.
Full Case Text
Judgment text and source record
28 paragraphs
Mabachi & 2 others v Land Registrar, Busia & 2 others (Environment & Land Case 28 of 2015) [2023] KEELC 20362 (KLR) (5 October 2023) (Ruling)
Neutral citation: [2023] KEELC 20362 (KLR)
Republic of Kenya
In the Environment and Land Court at Busia
Environment & Land Case 28 of 2015
BN Olao, J
October 5, 2023
Between
Lucas Ouma Mabachi
1st Plaintiff
Henry Gabriel Mabachi
2nd Plaintiff
Masiga Okumu James Lemmy
3rd Plaintiff
and
The Land Registrar, Busia
1st Defendant
The Hon. Attorney General
2nd Defendant
Benjamin Okello Sembe
3rd Defendant
Ruling
1. In the course of the trial this morning, Ms Nabulindo counsel for the Plaintiff asked the Court to expunge the statement of the 3rd Defendant as well as his documentary evidence which had only been filed yesterday October 4, 2023. She stated that they have been filed long after the pleadings had closed.
2. Mr Jumba counsel for the 3rd Defendant conceded that indeed the 3rd Defendant’s statement and documents had only been filed on October 4, 2023. He however added that this is because the parties have other cases in this Court and there was an error in filing them in this case. That expunging them will cause an injustice to the 3rd Defendant.
3. It is true that pleadings were long closed and infact the Plaintiff has already testified and closed his case earlier to-day. Mr Jumba has explained the cause of the misfiling of the statement and documents by the 3rd Defendant. I do not know how this lapse was misled by the parties during the pre-trial held on May 8, 2020 although I notice that Ms Nabulindo was not in Court on that day. Mr Onsongo who is seized of the matter ought to have raised it when the parties appeared before Hon Madowo Deputy Registrar for the pre-trial.
4. Having said so, it is on record that Ms Nabulindo has proceeded to prosecute the Plaintiffs case knowing all along that the 3rd Defendant filed his statement and documents on October 4, 2023. Indeed she was served with the same and so they are not strange documents. The Plaintiff has not therefore been prejudiced and this Court is enjoined to do substantive justice to the parties.
5. In the circumstances I will not expunge the statement of the 3rd Defendant and documents. I rule that they are properly on record and served. The 3rd Defendant will however meet today’s costs of the Plaintiff assessed at Kshs.5,000 payable before the next hearing date which is November 9, 2023.
BOAZ N. OLAOJUDGE5THOCTOBER 2023Ruling dated, signed and delivered in open court this 5thday of October 2023. Ms Nabulindo for Plaintiff presentMr Jumba for 3rd Defendant present1st and 2nd Defendants – absentAjwang – Court AssistantBOAZ N. OLAOJUDGE5THOCTOBER 2023BUSIA ELC NO. 28 OF 2015 - RULING Page 2 of 2