[2024] KEELC 13782 (KLR)

Mwamngumi & another v Kagambi (Environment & Land Case E011 of 2023) [2024] KEELC 13782 (KLR) (11 December 2024) (Ruling)

Neutral citation: [2024] KEELC 13782 (KLR)

Republic of Kenya

In the Environment and Land Court at Kwale

Environment & Land Case E011 of 2023

AE Dena, J

December 11, 2024

Between

Mwinyi Salim Mwamngumi

1st Applicant

Mwanakombo Saidi Juma

2nd Applicant

and

Timothy Irimu Kagambi

Respondent

Ruling

1. 1 The application the subject of this ruling is dated 9th September 2024 It is filed by the Applicants and seeks the following orders;- 1. That this court be pleased to grant the Applicant/Plaintiff leave to file a further list of documents

2. That the supplementary list of documents dated 10th September 2024 be deemed as filed

3. That costs of this application be in the cause

2The application is premised upon grounds on its face and the supporting affidavit of MWINYI SALIM MWANGUMI. It is deponed that at the time of filing this suit the adjudication search dated 2/6/2022 was inadvertently not filed together with the other documents. That the said document is material evidence to the Claimant’s case and will aid the court in making an informed decision and determine the issues in the dispute. That the application has been made without unreasonable delay and there will be no prejudice occasioned in the event that the same is allowed.

3The Respondent opposed the application vide a replying affidavit sworn on 20th September 2024. It is averred that the application has been overtaken by events as the matter was already set down for hearing. That the Applicant is keen on derailing the hearing of the suit and the application is unfair to the defence who are ready to proceed with the hearing. Further that the document is dated 2022 meaning the Applicant had the chance to file the same earlier, that some of the averments raised therein are an abuse of the court process and hence the application should be dismissed by the court.

4The application was dispensed by written submissions. The Applicant’s submissions are dated 14/10/2024 and the Respondents 23/9/2024. The court has considered the submissions.

DETERMINATION 5. The application is filed pursuant to the provisions of Articles 50, 159[2][d] of the Constitution of Kenya 2010, Sections 1A,3A and 100, Order 51 rule 1 of the Civil Procedure Act and Rules 2010. Article 50 is on the right to be heard , 159(2)(d) enjoins the court to adjudicate cases without undue regard to technicalities. Section 100 is on the general powers of the court.

6Section 1A of the Civil Procedure Act provides for the overriding objective of the Civil Procedure Act and the rules made thereunder and provides as follows:1A(1)The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.(2)The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).(3)A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.

7. Section 3A of the Civil procedure Act is on the inherent powers of the court and provides;-Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

8I will revisit the above provisions later in this ruling but first the court will review the specific provisions touching on filing of documents. The Civil Procedure Rules 2010 require parties to furnish their evidence in advance before the commencement of the trial. These provisions are found in Order 3, Order 7 and Order 11 of the Civil Procedure Rules.

9Under Order 3 rule 2, when filing suit, one needs also to file a Verifying Affidavit, list of witnesses, statements of witnesses excluding expert witnesses, and copies of documents to be relied upon at the trial. There is a proviso that the written statements may with the leave of the court be availed at least 15 days prior to the Trial Conference envisaged under order 11 of the Civil Procedure Rules.

10From the provisions of Order 11 of the Civil Procedure Rules, the court is permitted to exercise discretion by allowing parties to file further documents even after the pre-trial conference and the matter is set down for hearing. The court in the case of Alois Oceano D’sumba v Rajnikant Narshi Shah & another [2017] eKLR held as follows: 10. The above provisions are clear on the requirement for parties to file documents within certain parameters. If documents are not available as at the time of filing pleadings, a party should seek leave of the court to file the said documents before the hearing of the case commences. That is the one of the purposes for the directions that a court gives under the provisions of Order 11 of the Civil Procedure Rules. Any party wishing to introduce new or additional evidence must in similar light seek leave of the court to file such statements and/or documents before the hearing of the plaintiff’s case.”

11It is imperative to note that this application is filed after the Plaintiff has called one witness the 1st Applicant who testified through to cross examination and re-examination. The matter was adjourned to call the 2nd Applicant as a witness but then the present application was filed necessitating its determination.

12In the case of Johana Kipkemei Too Vs Hellen Tum (2014) eKLR Justice Sila Munyao had this to say;-- -‘The court has a constitutional mandate to ensure that a trial will be fair and therefore retains the power to disallow one party from tabling evidence that was not provided to the other party as contemplated by the rules. This was indeed the reasoning of the Supreme Court in the case of Raila Odinga & 5 Others vs IEBC & 3 Others, Supreme Court of Kenya, Petitions Nos. 3,4 and 5 of 2013 (2013) eKLR, where in a presidential electoral dispute, the Supreme Court declined to allow additional evidence filed outside the contemplation of the rules.This however is not to say, that the court can never under any circumstances, permit a party to adduce additional evidence, that was not furnished to the other party as provided under the rules. The court as a shrine of justice, has a mandate to do justice to all parties and not to be too strictly bound by procedural technicalities. This flows from the provisions of Article 159 (2) (d) of the Constitution. Where such evidence can be adduced, without causing undue prejudice to the other party, the court ought to allow the application, so as to allow such party, the opportunity to present his case in full. The court may consider various factors including, but not restricted to, the earlier availability of the witness, the discovery of a new document, and the stage of the proceedings at which the additional evidence is sought to be introduced. If for example, the trial has not started, little prejudice may be caused to either party if one is permitted to introduce additional evidence. The prejudice to the other party no doubt increases as the trial progresses. But it is up to each court to weigh the surrounding circumstances of each case, and determine whether it will be in the interests of justice, to allow such evidence to be tendered, though outside the time frame provided by the rules. Emphasis is mine.

13The parties have filed the documents in support of their respective cases, however, the Applicants state that the document they seek to introduce in their supplementary list of documents includes an adjudication search dated 2/6/2022. The Applicants claim that the same was inadvertently not filed with the other documents.

14Arising from the dictum in the case law above the most pertinent consideration will be if there will be any prejudice that will be suffered by the Respondent should the document be allowed as part of the evidence[documentary] to be relied upon by the Applicants. The Defendant/Respondent on the other hand states that the document will be prejudicial to his case as it has been filed way after the pre-trial process has been completed and the matter set down for hearing. The Respondents in my view have not fully demonstrated how they will be prejudiced by the introduction except that all pleadings had been confirmed including documents to be used at the trial. That the applicant had a chance to file the document earlier.

15Allowing filing of documents outside the stipulated timelines is a matter of the courts discretion based on the circumstances of each case What is in contest is the period of use and occupation of the suit property, the search, as suggested by the Applicants might prove the alleged allotment, but the main issue in my opinion will be the aftermath of the alleged allocation/allotment in terms of occupation and use of the property. The Plaintiffs case has not been closed neither has the Defendants case commenced. As long as the opposite party will have an opportunity to cross examine the Plaintiff including the maker thereof should they find it necessary I do not see any undue prejudice to be occasioned.

16I have already set out elsewhere in this ruling the provisions under which this application has been filed hinging on the overriding objectives of the court. The overriding objective of the court is to not only ensure timely disposal of matters but ensure justice is met through equal protection of rights of the parties before it.

17Based on the foregoing, I hereby exercise the courts discretion and invoke the overriding objective of the law in civil cases as stipulated in Sections 1A and 1B of the Civil Procedure Act and 3A and allow the application by the Applicants to have the supplementary list of documents dated 10th September 2024 deemed as filed and served.

18The court hereby grants leave to the Respondents to file any supplementary or further list of documents within the next 14 days of this ruling should they deem it necessary.

19Each party to bear their own costs.

Orders accordingly

RULING DATED SIGNED AND DELIVERED THIS 11TH DAY OF DECEMBER 2024…………………………….A E DENAJUDGEMwangi Kihira for RespondentMs. Mukabane for ApplicantDaniel Disii – Court Assistant