[2024] KEELC 7256 (KLR)
The court found that the applicant was not seeking to be joined as a new party but to testify in place of a deceased co-owner who was already listed as a witness. The plaintiffs had not closed their case, and the defendants had been made aware of the plot in question and the applicant's interest. The court...
Source-derived case information.
- Citation
- [2024] KEELC 7256 (KLR)
- Parties
- Plaintiff: Sarah Wacera Mwangi; Plaintiff: Nzili Kingola; Plaintiff: Michael Muchiri; Defendant: Titus Mwai Kariuki; Defendant: Isaac Wangombe; Defendant: Mary Njeri Mahinda; Defendant: John Kimani Kabiru; Defendant: Joseph Kingoo Kiema; Defendant: Susan Wanjiku Kimani; Defendant: Geoffrey Muna Kimani; Defendant: Katua Muli; Defendant: Geoffrey Muna; Defendant: Victoria N. Muisyo; Defendant: Peninah Mukami Bernard; Defendant: Monica Mukami Gitau; Defendant: Mary Auma Njau; Defendant: James Mwangi Muigai; Defendant: Eliud Karumba Njoroge; Defendant: John Kimani Ruguru; Defendant: Paul Mutie
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 420 of 2018
- Procedural Posture
- Environment and Land Case / Ruling on Interlocutory Application for Leave to File Witness Statement and Documents Out of Time
- Outcome
- application granted
- Judges
- AA Omollo
- Legal Topics
- Late Filing of Evidence, Replacement of Witness, Joinder of Parties, Prejudice to Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sarah Wacera Mwangi
Plaintiff
Nzili Kingola
Plaintiff
Michael Muchiri
Plaintiff
Titus Mwai Kariuki
Defendant
Isaac Wangombe
Defendant
Mary Njeri Mahinda
Defendant
John Kimani Kabiru
Defendant
Joseph Kingoo Kiema
Defendant
Susan Wanjiku Kimani
Defendant
Geoffrey Muna Kimani
Defendant
Katua Muli
Defendant
Geoffrey Muna
Defendant
Victoria N. Muisyo
Defendant
Peninah Mukami Bernard
Defendant
Monica Mukami Gitau
Defendant
Mary Auma Njau
Defendant
James Mwangi Muigai
Defendant
Eliud Karumba Njoroge
Defendant
John Kimani Ruguru
Defendant
Paul Mutie
Defendant
Procedural Posture
Environment and Land Case / Ruling on Interlocutory Application for Leave to File Witness Statement and Documents Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file a witness statement and documents out of time.
- 2 Whether the applicant can testify in place of a deceased co-owner who was a listed witness.
- 3 Whether allowing the application would prejudice the defendants.
Ratio Decidendi
The court found that the applicant was not seeking to be joined as a new party but to testify in place of a deceased co-owner who was already listed as a witness. The plaintiffs had not closed their case, and the defendants had been made aware of the plot in question and the applicant's interest. The court determined that no irreparable prejudice would be suffered by the defendants if the application was allowed, and any prejudice could be remedied. Therefore, in the interests of justice and fair hearing, the court exercised its discretion to grant leave for the applicant to file and serve her witness statement and documents out of time and to testify at the hearing.
Court Disposition
application granted
Orders
- The application dated 4th June, 2023 is granted as prayed.
- The applicant (Sarah Wambiro) to file and serve the statement and list of documents within 14 days.
Full Case Text
Judgment text and source record
59 paragraphs
Mwangi & 2 others v Kariuki & 16 others (Environment & Land Case 420 of 2018) [2024] KEELC 7256 (KLR) (24 October 2024) (Ruling)
Neutral citation: [2024] KEELC 7256 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 420 of 2018
AA Omollo, J
October 24, 2024
Between
Sarah Wacera Mwangi
1st Plaintiff
Nzili Kingola
2nd Plaintiff
Michael Muchiri
3rd Plaintiff
and
Titus Mwai Kariuki
1st Defendant
Isaac Wangombe
2nd Defendant
Mary Njeri Mahinda
3rd Defendant
John Kimani Kabiru
4th Defendant
Joseph Kingoo Kiema
5th Defendant
Susan Wanjiku Kimani
6th Defendant
Geoffrey Muna Kimani
7th Defendant
Katua Muli
8th Defendant
Geoffrey Muna
9th Defendant
Victoria N. Muisyo
10th Defendant
Peninah Mukami Bernard
11th Defendant
Monica Mukami Gitau
12th Defendant
Mary Auma Njau
13th Defendant
James Mwangi Muigai
14th Defendant
Eliud Karumba Njoroge
15th Defendant
John Kimani Ruguru
16th Defendant
Paul Mutie
17th Defendant
Ruling
1. This determination is in respect to the application dated 4th June, 2023 where the Sarah Wambiro sought for leave to be allowed to file her witness statement and documents out of time. She also prayed to be allowed to testify during the hearing set for 28th September, 2023.
2. The Application is premised on the affidavit sworn by Sarah Wambiro in support and on the grounds listed on its face thus;a.The Applicant and one Mary Wanjiru Ndung’u jointly bought plot No. 43 Canaan Project, Nairobi from Jane Sarah Wambui on 19th July, 1996. b.The Applicant has learnt that Mary Wanjiru Ndung’u did not make a witness statement as she is deceased.c.That if leave is granted, it will not cause prejudice to the defence.
3. The Defendants opposed the application by filing grounds of opposition dated 30th January, 2024. It listed 11 grounds of objection inter alia;a.The Applicant has not demonstrated with precision the necessity for their addition as a party to this matter.b.The Applicant’s addition as a party serves no purpose at this stage of the proceedings since both sides are already too far gone into the hearing of the main suit, other than to delay the proceedings.c.To ambush the Defendants this far into the defense of this matter will occasion a grave miscarriage of justice since this is a move that intends to blindside the Defendants.d.That to allow this addition at this stage will impact the conclusion of this matter negatively as the consequent amendment to both plaintiffs and Defendants case will render all progress so far null.
4. The Applicant filed a further affidavit and deposed inter alia that the plaintiffs have not closed their case. She avers the Defendants have not exactly indicated how they would be prejudiced if the application is allowed. She added that she was not aware of the death of her fellow co-owner Mary Wanjiru Ndung’u who had undertaken to follow up their interest.
5. I have considered the pleadings as filed. There is no prayer sought in the application for joinder of a new party. The Applicant is seeking to be allowed to give evidence in place of Mary Wanjiru Ndungu – deceased who she stated died before filing a written statement. The suit is as drafted is that the three people named as plaintiffs have brought the suit on behalf of 23 others.
6. In the supplementary list of witness dated 10th May, 2022, and served on the Defendants counsel on 16th May, 2022, the name of the deceased appears at number 4 of the list and is indicated as the owner of plot No. 143. The Applicant has explained that they bought this plot jointly and she was not aware of the demise of her co-owner. Therefore, the Applicant is not a new party as such since the Defendant was already made aware of the plot number she is claiming.
7. As the record confirms, the plaintiffs have not closed their case and the Applicant in my view is a replacement of witness already stated in the pleadings. I do not see any prejudice the Defendants will suffer which cannot be remedied if the orders sought are granted.
8. Consequently, the application dated 4th June, 2023 is granted as prayed with no orders as to costs. The Applicant (Sarah Wambiro) to file and serve the statement and list of documents within 14 days hereof. The matter to be set down for further hearing.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 24TH DAY OF OCTOBER, 2024A. OMOLLOJUDGE