https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3710

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIVASHA** **ELCL CASE NO. 106 OF 2024** **(FORMERLY MILIMANI ELC 384 OF 2019)** **NAIVASHA QUARRY PROJECT LIMITED………..…..……..……..PLAINTIFF** **VERSUS** **KENYA WILDLIFE SERVICES…...……………………..………1ST DEFENDANT** **KENYA WILDLIFE RESEARCH SERVICE** **AND TRAINING INSTITUTE.……………..…….…………….…2ND DEFENDANT** **DIRECTOR OF SURVEYS…………..……………………………3RD DEFENDANT** **KENYA AFRICAN NATIONAL UNION (KANU) ….…………..4TH DEFENDANT** **RULING** 1. The matter for determination before this Court is an oral application made by Mr. Waiganjo, learned Counsel for the Plaintiff who upon calling his only witness who testified and was cross examined exhaustively, sought an adjournment to enable him record, file, and serve an additional witness statement for one Mr. Sipul T.O, a former employee of the Kenya Wildlife Service (KWS), so that he could formally give evidence before this Court. The application was vehemently opposed by learned Counsel for the Defendants. 2. In moving the Court, Mr. Waiganjo candidly admitted that the failure to file a witness statement for Mr. Sipul T.O. arose out of sheer oversight. He explained that the Plaintiff had proceeded under the mistaken assumption that since Mr. Sipul was the author of a letter dated 24th March 2006 (already admitted as Pf exh 8) and had attended a pivotal meeting on 16th October 2002 (admitted as Pf exh 19), these documents would form a sufficient basis for his oral testimony without the strict necessity of a prior formal statement. 3. The Plaintiff argued that calling this witness is not an afterthought or an attempt to ambush the defence, noting that the witness list reserved the right to call ‘’any other relevant witness’’ and that summonses had been repeatedly issued for him. Counsel heavily relied on Article 159 of the Constitution of Kenya, 2010, which mandates courts to dispense substantial justice without due regard to technicalities. He urged the Court to look past the mistake of Counsel, exercise its equitable discretion, and allow the witness to testify so that the land dispute, specifically regarding a background subdivision by KWS, can be heard to its ultimate finality. 4. The Defendants collectively presented a formidable opposition to the application, anchored on three main thematic pillars: procedural compliance, prejudice, and the proper boundaries of Articles 159 and 50 of the Constitution. 5. The defence submited that the trial had already commenced and the defence was caught completely by surprise. They argued that because the nature of Mr. Sipul’s intended evidence was never disclosed in a witness statement or survey report, the Defendants had been denied an opportunity to timeously structure their counterclaims or consider joining necessary parties. That admitting such evidence would be prejudicial to them. 6. They further submitted that the request was an afterthought designed to plug evidentiary gaps that had become apparent during the live trial. That since the core documents being exhibited as Pf exh 8 and 19 were already safely on the court record, calling the witness simply to re-agitate their contents was a waste of precious judicial time. 7. The defence strongly countered the Plaintiff’s reliance on constitutional leniency, stating that Article 159 was not a blank cheque to reward gross negligence or lack of diligence in trial preparation. A court of law must maintain procedural predictability, and allowing parties to bypass rules based on blind assumptions would invite procedural chaos. They invoked Article 50 of the Constitution, demanding that the right to a fair and expeditious hearing must apply equally to the Defendants. 8. Having carefully considered the rival submissions of Counsel, the Court finds itself balancing two competing, foundational tenets of the judicial process: the right of a party to fully ventilate their case on the merits, and the right of the opposing party to a predictable, fair trial free from tactical ambushes. 9. It was held in the case of **Pinnacle Projects Limited v Presbyterian Church of East Africa, Ngong Parish & another [2019] eKLR** that; *‘’Although in particular circumstances errors, omissions, missteps and blunders are made by parties or their Counsels during pre-trial or in the course of the trial, to find appropriate balance fundamental requisite of due process of law should be accorded a purposeful meaning to protect right to a fair hearing. The Civil Procedure Act and Rules provides for time-frame rules and commitments for parties to comply with discovery; dates for closure of pleadings, filing of witness statements, production of expert material where applicable, scheduling of cases and disposition dates. Needless to say that all these commitments are aimed at each litigant to have adequate notice and fair understanding of the litigation road ahead of time of disposition. Since the procedural directions are meant to serve substantial justice it follows therefore careful weight should be given to facially legitimate and bonafide reason for any procedural errors or omission in order to exercise discretion for the interest of justice’’.* 1. The Plaintiff has approached this Court invoking the equitable spirit of Article 159 of the Constitution, pleading for leniency over a ‘’mistake.’’ However, it is an ancient and unyielding maxim of equity that ‘’he who seeks equity must come with clean hands.’’ 2. The representation that summonses had been dutifully issued to the witness was factually incorrect. More damagingly, the timing of the application, coming strictly on the heels of PW1 being cornered on the Joint Survey Report, convinces this Court that the introduction of Mr. Sipul is not an honest rectification of an oversight. It is a strategic afterthought. It is an undisguised attempt to patch up material gaps exposed during live cross-examination in the Plaintiff's case. Equity cannot be used to rescue a litigant from the strategic choices or failures of their trial presentation at the expense of the other parties, and neither can Article 159 of the Constitution, which is a double-edged sword, shield outright carelessness as submitted by senior Counsel. 3. The Civil Procedure Rules and the ELC Practice Directions are not decorative; they are designed to eliminate trial by ambush. Litigants must lay their cards face up on the table before the whistle blows to commence the hearing. The rationale is simple: to prevent trial by ambush. In this case, the Plaintiff’s failure to file a witness statement and/or documents for Mr. Sipul T.O. since 2019, despite knowing his central relevance to the KWS subdivision narrative, constitutes a profound procedural lapse. 4. The letter authored by Mr. Sipul T.O. is not benign. It deals with intricate land exchanges, excisions of 30.703 Hectares, and instructions to modify titles for L.R. No. 23398, 24673, and 1473. If this witness is allowed to take the stand without prior pleadings or statements, the Defendants would be placed in an impossible position. They would be forced to cross-examine a witness on technical land allocations without the benefit of expert consultation or the ability to amend their own counterclaims to mitigate this ‘’new’’ evidence. 5. While Article 159 dictates that substantial justice must override technicalities, it is a double-edged sword. It cannot be used to butcher the Defendants' right to a fair trial under Article 50 of the Constitution. A trial in which one side is allowed to introduce unlisted witnesses midstream to cure defects exposed during cross-examination ceases to be a fair judicial process; it becomes an unpredictable moving target. 6. The contents of the letter and the minutes are already admitted as exhibits. Whatever weight they carry will be evaluated by the court at the submission stage. Bringing the author now, after the trial has taken off and under these circumstances, serves no purpose other than to introduce an impermissible element of surprise and unfairly prejudice the defence. 7. Consequent to the findings herein above, I dismiss the Application, seeking to record, file, and serve a witness statement for Mr Sipul T.O. The hearing shall proceed accordingly. **Dated and delivered via Microsoft Teams at Naivasha, this 18th day of June 2026.** **M.C. OUNDO** **ENVIRONMENT & LAND COURT – JUDGE**