Mithii & another v Njeru (Land Case Appeal E049 of 2024) [2026] KEELC 3070 (KLR) (21 May 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELCL APPEAL NO. E049 OF 2024** **PETER MWANGI MITHII............…….............................1ST APPELLANT** **KELVIN WANDERI KINYUA...........................................2ND APPELLANT** **VERSUS** **LUCY MUTHONI NJERU................................................RESPONDENT** ***(Being an appeal from the Ruling of Hon. Francis Kyambia (CM) delivered on 03/10/2024 in Embu ELC Case No. E026 of 2021 Lucy Muthoni Njeru v Peter Mwangi & Anor)*** **JUDGMENT** 1. The Appeal herein arises from a ruling of the trial Court in respect of an oral application made by counsel for the Appellants seeking leave to step down the 1st Appellant and to avail the statement of the 2nd Appellant. The application was opposed by the Respondents advocate who argued that it would not be fair for the Appellants to be allowed to introduce evidence when the Respondent had closed her case. 2. In its ruling, the trial court considered the provisions of Order 7 Rule 5 of the Civil Procedure Rules, which require that a defence be accompanied by, inter alia, a list of witnesses and their signed statements, save that such statements may, with leave of the court, be filed at least fifteen days prior to the pre-trial conference under Order 11. The court found that no sufficient explanation had been offered by the counsel for the Appellants for the failure to file the 2nd Appellant’s witness statement at the pre-trial stage. It further noted that the application was made after the Respondent had closed her case. In those circumstances, the court concluded that allowing the application would occasion prejudice to the Respondent and would not serve the interests of justice, and accordingly declined to grant the orders sought. 3. The Appellant was aggrieved by the impugned decision and preferred the present Appeal on 16 grounds which are summarized as follows; 4. That the trial Court erred in law and in fact in finding that the Appellants’ Advocate did not give reasons why the Appellants’ witness statement was not provided during the pre-trial conference and in failing to consider the Appellants’ written submissions dated 01/10/2024. 5. That the trial Court erred in law and in fact in declining the Appellants’ Application to avail the 2nd Appellant’s witness statement and in misinterpreting the provisions of Article 159 of the Constitution of Kenya, 2010 which emphasize on substantive justice over procedural technicalities. 6. That the trial Court erred in law and in fact in failing to consider that the Respondent would not suffer any prejudice and that she was at liberty to re-open her case and file any further documents in response 7. That the trial Court erred in law and in fact in failing to consider that the Appellants’ witness statement dated 12/05/2023 had been served upon the Respondent’s advocates on record at the time who had received it and was therefore not new evidence. 8. That the trial Court erred in law and in fact in failing to consider that the Appellants may have complied with Order 7 Rule 5 of the Civil Procedure Rules and that there may have occurred an error at the registry that the statement was not placed on record alongside the Appellants pleadings and other documents. 9. That the trial Court erred in law and in fact in failing to consider that the Appellants stood to suffer prejudice and be condemned unheard, contrary to their right to a fair trial under Article 50 of the Constitution of Kenya, 2010 if they were not granted leave to avail their witness statement. 10. That the learned trial magistrate misdirected himself in the exercise of his discretion by taking into account irrelevant factors, failing to consider relevant ones, and thereby arrived at an unjust decision. 11. The Appellants sought to have the ruling of the trial Court set aside and the appeal be allowed with costs to the Appellants. 12. When the appeal came up for directions, the parties agreed to canvass the appeal by way of written submissions. The Appellants filed submissions dated 09/12/2025 through the firm of Kithi and Company Advocates. They submitted that the trial court’s decision was based on rigid adherence to procedural technicalities contrary to Article 159(2)(d) of the Constitution, which requires justice to be administered without undue regard to technicalities. They emphasized that the Respondent would suffer no prejudice since she had been served with the statement in May 2023 and was aware of its contents. They even offered that the Respondent could re-open her case to address issues raised in the statement. They argue that refusal to admit the statement condemned them unheard, violating their constitutional rights under Articles 25 and 50 to a fair trial and fair hearing. 13. They further submitted that the witness statement did not introduce a new cause of action but merely elaborated on the defense and counterclaim already on record. They argued that the trial court ignored relevant factors such as lack of prejudice to the Respondent, prior service of the document to the Respondent, and the constitutional imperative for substantive justice. They relied on authorities such as In re Estate of Francis Kimitei Samoei (Deceased) [2023] Eklr and Merry Beach Limited v Barclays Bank of Kenya Limited [2014] Eklr among others in support of their submissions. 14. The Respondent filed submissions dated 08/01/2026 through the firm of Musyoka Munya & Company Advocates. She submitted that the appeal seeks to unjustifiably fault a proper exercise of judicial discretion and reward the Appellants’ indolence. She averred that the suit was filed in 2021, and parties were granted ample time to file and exchange witness statements in compliance with Order 11 of the Civil Procedure Rules. That despite this, the Appellants failed to file the impugned witness statements for over three years, only attempting to introduce them after the Respondent had closed her case. She maintained that the learned Magistrate correctly rejected this attempt, which amounted to trial by ambush. 15. She further submitted that the instant suit was purely a claim for payment of monies owed and that the Appellants had deliberately employed procedural maneuvers to delay settlement and continue enjoying unjust enrichment. She urged that the appeal be dismissed. She relied on the cases of Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd [2009] eKLR, Railway Corporation v Edermann Property Limited [2018] eKLR, Stephen Boro Gitiha v Family Finance Building Society [2015] eKLR and Kibos Distillers Limited v Benson Ambuti Adega [2020] eKLR among others in support of the submissions. 16. I have considered the Record of Appeal, the ruling of the trial court, the grounds of appeal and the rival submissions by the parties. The issue falling for determination is whether the learned trial magistrate properly exercised his discretion in declining the Appellants’ oral application seeking leave to avail the 2nd Appellant’s witness statement after the Respondent had closed her case. 17. From the record, the Appellants contended that the witness statement dated 12/05/2023 had been served upon the Respondent’s advocates and that the omission to place it on the court record may have resulted from a registry error. They further argued that the Respondent would not suffer prejudice as she was already aware of the contents of the statement and could be granted leave to re-open her case if necessary. On the other hand, the Respondent opposed the application on the basis that the matter had been pending for several years and that the attempt to introduce the witness statement after the close of her case amounted to trial by ambush and would occasion prejudice. 18. This court is alive to the principle that disputes ought, as far as possible, to be determined on their merits rather than on procedural technicalities as required by Article 159 (d) of the Constitution of Kenya. I note that the intended witness statement did not introduce a new cause of action or substantially alter the nature of the defence and counterclaim already on record. It is infact a statement by both the 1st and 2nd Appellant. Further, there was an assertion by the Appellants that the statement had earlier been served upon the Respondent’s advocates. Most importantly, any prejudice that the Respondent may have suffered could adequately have been cured by granting her leave to re-open her case and respond to the statement. 19. In the circumstances, I find that the appeal is merited and it is hereby allowed. The ruling of the trial court is hereby set aside. The Appellants are granted leave to avail and rely on the 2nd Appellant’s witness statement dated 12/05/2023 upon payment of the requisite court fees if any. 20. The Respondent shall be at liberty to re-open her case, if necessary for purposes of addressing matters arising from the said witness statement. 21. The matter is hereby remitted back to the trial court for hearing and determination on merit. Costs of the appeal shall abide the outcome of the suit. **DATED, DELIVERED AND SIGNED AT EMBU THIS 21ST DAY OF MAY, 2026.** **HON. E.C CHERONO** **HON E. C. CHERONO** **ELC JUGE, EMBU** In the presence of; 1. M/S Katana H/B for Mr. Kithi for Appellant 2.Respondent/Advocate-absent 3. M/S Ruth C/A