[2022] KEELC 2866 (KLR)
The court held that it would be neither fair nor just to exclude evidence that could assist in the fair determination of the dispute. The court emphasized that a fair hearing, as envisaged by Article 50(1) of the Constitution, should not be compromised by inadvertent mistakes, particularly where the opposing party...
Source-derived case information.
- Citation
- [2022] KEELC 2866 (KLR)
- Parties
- Plaintiff: Joseph Silemi Mayon (Suing as the legal representative of the Estate of Sagindi ole Ndentuka); Defendant: Anthony Mwaniki Mwai; Defendant: William Koipitat Mayon; Defendant: Paul Musau Mwangangi; Defendant: County Land Registrar, Kajiado; Defendant: Equity Bank Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Case Civil Suit 51 of 2018
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application for Leave to File Supplementary Documents
- Outcome
- Application allowed.
- Judges
- MN Gicheru
- Legal Topics
- Admissibility of Evidence, Supplementary Documents, Fair Hearing, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Silemi Mayon (Suing as the legal representative of the Estate of Sagindi ole Ndentuka)
Plaintiff
Anthony Mwaniki Mwai
Defendant
William Koipitat Mayon
Defendant
Paul Musau Mwangangi
Defendant
County Land Registrar, Kajiado
Defendant
Equity Bank Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application for Leave to File Supplementary Documents
Legal Issues
- 1 Whether the plaintiff should be granted leave to file and serve a supplementary list of documents containing an amended grant.
- 2 Whether recalling the plaintiff to produce the amended grant in evidence would prejudice the defendants or contravene the overriding objective of the Civil Procedure Act.
Ratio Decidendi
The court held that it would be neither fair nor just to exclude evidence that could assist in the fair determination of the dispute. The court emphasized that a fair hearing, as envisaged by Article 50(1) of the Constitution, should not be compromised by inadvertent mistakes, particularly where the opposing party will have the opportunity to cross-examine on the new evidence and file rebuttal evidence. The court found that allowing the supplementary document would not unduly prejudice the defendants or contravene the overriding objective of the Civil Procedure Act and Rules. Accordingly, the court granted the plaintiff leave to file and serve the supplementary list of documents and...
Court Disposition
Application allowed.
Orders
- Leave granted to the plaintiff to file and serve a supplementary list of documents containing the amended grant.
- Plaintiff recalled to produce the amended grant in evidence.
Full Case Text
Judgment text and source record
30 paragraphs
Mayon (Suing as the legal representative of the Estate of Sagindi ole Ndentuka) v Mwai & 4 others (Environment and Land Case Civil Suit 51 of 2018) [2022] KEELC 2866 (KLR) (4 May 2022) (Ruling)
Neutral citation: [2022] KEELC 2866 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment and Land Case Civil Suit 51 of 2018
M N Gicheru, J
May 4, 2022
Between
Joseph Silemi Mayon (Suing as the legal representative of the Estate of Sagindi ole Ndentuka)
Plaintiff
and
Anthony Mwaniki Mwai
1st Defendant
William Koipitat Mayon
2nd Defendant
Paul Musau Mwangangi
3rd Defendant
County Land Registrar, Kajiado
4th Defendant
Equity Bank Limited
5th Defendant
Ruling
1. This ruling is on the Notice of Motion dated 1st December, 2021. The said motion which is under Sections 1A, 1B (a), 3, 3A and 63 (e) of the Civil Procedure Act, Order 51 Rule 1 Civil Procedure Rules and all enabling provisions of the law seeks leave to the Plaintiff to file and serve a supplementary list of documents which contains an amended grant only. It also seeks to have the Plaintiff recalled to produce it in evidence.
2. The grounds for seeking the order are that the Applicant forgot to include the said grant as part of his evidence.
3. The application is supported by an affidavit sworn by the Applicant in which he explains the mistake which he did not discover until he testified in Court on 18/11/2021.
4. The application is opposed by the 5th Defendant whose counsel has filed grounds of opposition dated 18/2/2022. The grounds include a statement that the Applicant is only seeking to seal loopholes exposed in cross-examination and his sole intention is to surprise and ambush the Defendant and also to delay the trial and increase costs contrary to the overriding objective of the Civil Procedure Act and Rules.
5. I have carefully considered the application in its entirety including the affidavit, annexures and grounds of opposition.
6. I find that it is neither fair nor just to lock out evidence that could assist the Court in arriving at a fair determination of the dispute. A fair hearing as envisaged under Article 50(1) of the Constitution is one where a mistake or error should not be allowed to derail the course of justice especially when the other party will be given a chance to cross-examine on the new evidence and also to file evidence in rebuttal.
7. For the above reasons, I allow the Notice of Motion dated 1st December, 2021. I grant leave to the 5th Defendant to file any evidence in rebuttal if they so wish, in the next 7 days. Hearing as scheduled on 17/5/2022. Order accordingly.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 4TH DAY OF MAY, 2022. M.N. GICHERUJUDGE