[2024] KEELC 5215 (KLR)
The court found that the surveyor's report sought to be introduced by the defendant was already listed as document number 8 in the plaintiff's list of documents but had been expressly abandoned by the plaintiff during testimony. No notice to produce the document was issued by the defendant, and no sufficient reason...
Source-derived case information.
- Citation
- [2024] KEELC 5215 (KLR)
- Parties
- Plaintiff: Casmiel Mbori Ogendi alias Casmiel Mbori Ogendi; Defendant: Fredrick Onyango Odhiambo (Suing on Her Own Behalf and as the Legal Administrator of the Estate of Johnson Odhiambo Ogolo - Deceased)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Enviromental and Land Originating Summons E002 of 2024
- Procedural Posture
- Environment and Land Originating Summons / Ruling on Application to File and Serve Additional Document
- Outcome
- application dismissed
- Judges
- GMA Ongondo
- Legal Topics
- Discovery of Documents, Late Filing of Evidence, Abandonment of Documents, Order 11 Civil Procedure Rules, Notice to Produce, Trial by Ambush
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Casmiel Mbori Ogendi alias Casmiel Mbori Ogendi
Plaintiff
Fredrick Onyango Odhiambo (Suing on Her Own Behalf and as the Legal Administrator of the Estate of Johnson Odhiambo Ogolo - Deceased)
Defendant
Procedural Posture
Environment and Land Originating Summons / Ruling on Application to File and Serve Additional Document
Legal Issues
- 1 Whether the defendant should be granted leave to file and serve an additional surveyor's report after the discovery stage.
- 2 Whether the application to introduce the document amounts to trial by ambush and contravenes Order 11 of the Civil Procedure Rules 2010.
- 3 Whether the plaintiff's abandonment of the document precludes its production by the defendant.
Ratio Decidendi
The court found that the surveyor's report sought to be introduced by the defendant was already listed as document number 8 in the plaintiff's list of documents but had been expressly abandoned by the plaintiff during testimony. No notice to produce the document was issued by the defendant, and no sufficient reason was advanced for the delay in filing and serving the document. The court held that the application was an afterthought, contrary to the requirements of Order 11 of the Civil Procedure Rules 2010, and amounted to trial by ambush. The court further held that Article 159(2)(d) of the Constitution could not be invoked to cure the procedural defect, as it is not intended to...
Court Disposition
application dismissed
Orders
- The application to file and serve the additional surveyor's report is disallowed.
- No order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
Ogendi v Odhiambo (Suing on Her Own Behalf and as the Legal Administrator of the Estate of Johnson Odhiambo Ogolo - Deceased) (Enviromental and Land Originating Summons E002 of 2024) [2024] KEELC 5215 (KLR) (8 July 2024) (Ruling)
Neutral citation: [2024] KEELC 5215 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Enviromental and Land Originating Summons E002 of 2024
GMA Ongondo, J
July 8, 2024
Between
Casmiel Mbori Ogendi alias Casmiel Mbori Ogendi
Plaintiff
and
Fredrick Onyango Odhiambo (Suing on Her Own Behalf and as the Legal Administrator of the Estate of Johnson Odhiambo Ogolo - Deceased)
Defendant
Ruling
1. This ruling is in respect of an application by Mr. Omuthe learned counsel for the defendant/applicant, Fredrick Onyango Odhiambo seeking leave of this court to file and serve an additional document namely a surveyor’s report dated 16th June 2024 prepared by J. O Owino.
2. The basis of the application is that the document appears in the plaintiff’s list of documents dated 1st February 2024 herein. That it be produced in the interest of justice in this suit.
3. Miss Ochwal learned counsel for the plaintiff/respondent opposed the application on the grounds thus; The document ought to have been served during discovery stage. That the prayer is an afterthought and not in line with Order 11 of the Civil Procedure Rules 2010. That the application amounts to trial by ambush. That the plaintiff abandoned the document and no notice has been issued by the defendant to produce the same.
4. So, is the application merited?
5. It is noteworthy that the report is document number 8 in the list of the plaintiff’s list of documents. The same has been marked as abandoned as per the testimony of the plaintiff (PW1) in this suit which is partly heard.
6. Further, I bear in mind the essence of Order 11 (supra) and no notice has been issued to produce the document. The defendant has not advanced sufficient reason for the delay in filing and service of the document because delay defeats equity as premised in Article 10 (2) of the Constitution of Kenya 2010.
7. In the premises, I agree with the plaintiff’s counsel that the application is an afterthought. It cannot be salvaged under Article 159 (2) (d) of the Constitution of Kenya 2010 which is not a mere whitewash in cases; see Kakuta Maimai Hamisi-vs-Peris Pesi Tobiko and 2 others (2013) eKLR.
8. The upshot is that the application is devoid of merit. The same is hereby disallowed with no order as to costs.
9. It is so ordered
DATED AND DELIVERED AT HOMA BAY THIS 8TH DAY OF JULY 2024. G. M. A ONG’ONDOJUDGEPresent;1. Ms. W. Ochwal learned counsel for the plaintiff/respondent2. Mr. Omuthe learned counsel for the defendant/applicant3. T. Luanga, court assistant