[2023] KEELC 939 (KLR)
The court found that the document in question, although not authored by or addressed to the witness (Dw1), was part of her bundle and had been disclosed in accordance with Order 11 of the Civil Procedure Rules. The plaintiff's side had sufficient opportunity to object to its production during pretrial but failed to...
Source-derived case information.
- Citation
- [2023] KEELC 939 (KLR)
- Parties
- Plaintiff: Salome Wairimu Mbugua; Defendant: Esther Nyokabi Kanyi; Defendant: Nairobi City County; Interested Party: James Patrick Okando
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 250 of 2018
- Procedural Posture
- Environment and Land Case / Ruling on Evidentiary Objection During Trial
- Outcome
- Objection declined; document admitted for cross-examination.
- Judges
- LN Mbugua
- Legal Topics
- Admissibility of Evidence, Documentary Evidence, Pretrial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salome Wairimu Mbugua
Plaintiff
Esther Nyokabi Kanyi
Defendant
Nairobi City County
Defendant
James Patrick Okando
Interested Party
Procedural Posture
Environment and Land Case / Ruling on Evidentiary Objection During Trial
Legal Issues
- 1 Whether the document at page 16 of the 1st defendant's bundle is admissible despite objections regarding its authorship and provenance.
- 2 Whether the plaintiff's objection to the document's production was properly raised in accordance with pretrial procedures.
Ratio Decidendi
The court found that the document in question, although not authored by or addressed to the witness (Dw1), was part of her bundle and had been disclosed in accordance with Order 11 of the Civil Procedure Rules. The plaintiff's side had sufficient opportunity to object to its production during pretrial but failed to do so. The purpose of pretrial disclosure is to ensure all parties are aware of the evidence to be relied upon and to allow for timely objections. Since the plaintiff did not raise the objection at the appropriate stage, and will have the opportunity to cross-examine the witness on the document's relevance and authenticity, the objection was declined.
Court Disposition
Objection declined; document admitted for cross-examination.
Orders
- The plaintiff's objection to the production of the document at page 16 of the 1st defendant's bundle is declined.
- The plaintiff may cross-examine the witness on the relevancy and authenticity of the document.
Full Case Text
Judgment text and source record
24 paragraphs
Mbugua v Kanyi & another; Okando (Interested Party) (Environment & Land Case 250 of 2018) [2023] KEELC 939 (KLR) (13 February 2023) (Ruling)
Neutral citation: [2023] KEELC 939 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 250 of 2018
LN Mbugua, J
February 13, 2023
Between
Salome Wairimu Mbugua
Plaintiff
and
Esther Nyokabi Kanyi
1st Defendant
Nairobi City County
2nd Defendant
and
James Patrick Okando
Interested Party
Ruling
1. This ruling relates to the objection raised by counsel for the plaintiff on the basis that the document at page 16 of 1st defendants bundle did not emanate from the County Government; was not authored by the witness (Dw1) and was not addressed to the said witness. Further, counsel for the plaintiff contends that counsel for the 1st defendant had also made an objection on production of their documents during the hearing of plaintiffs’ case.
2. Counsel for the 1st defendant contends that pretrial was done and no objection was ever raised on production of the documents.
3. I have perused the document at page 16 of 1st defendants’ bundle. Indeed it is not addressed to the witness and it doesn’t emanate from her. However, that is her (Dw1’s) document. The plaintiffs side shall have an opportunity to cross examine her on the relevancy and authenticity of the said document; Noting that indeed the whole purpose of having Order 11 in our civil litigation is to ensure that evidence which a party intends to rely on is availed upfront. The plaintiff’s side hence had sufficient time to give advance notice of their objection.
4. In relation to proceedings when plaintiff was testifying, what is recorded is that the plaintiff’s side desired to produce 19 documents, omitting to produce the document identified as No 18 of which Mr Wachira was to be called to produce the same. The circumstances surrounding the calling of Mr Wachira as a witness only relate to the application for summons requiring attendance and nothing more. In the circumstances the objection is declined.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 13TH DAY OF FEBRUARY, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Juma for PlaintiffGichuru D.N for 1st DefendantNyaguna for 2nd DefendantOganji for the Interested PartiesCourt assistant: Eddel