[2023] KEELC 22335 (KLR)
The court found that there was widespread non-compliance with pre-trial directions by both the plaintiff and the defendants regarding the timely filing and service of trial bundles, witness statements, and documentary evidence. While recognizing the sacrosanct nature of the right to be heard, the court emphasized...
Source-derived case information.
- Citation
- [2023] KEELC 22335 (KLR)
- Parties
- Plaintiff: Crispine Omondi Opondo; Defendant: Mohamed Bille Mohamed; Defendant: Anne Wavinya Mbithe; Defendant: Kiambu Dandora Farmers Company Ltd; Defendant: Reagan Mwngangi Masue
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E188 of 2022
- Procedural Posture
- Environment and Land Case / Pre Trial Directions and Compliance Ruling
- Outcome
- Directions issued with strict timelines for compliance; conditional indulgence granted to plaintiff; warning issued to all parties.
- Judges
- LN Mbugua
- Legal Topics
- Pre Trial Directions, Trial Bundle Filing, Non Compliance Sanctions, Service of Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Crispine Omondi Opondo
Plaintiff
Mohamed Bille Mohamed
Defendant
Anne Wavinya Mbithe
Defendant
Kiambu Dandora Farmers Company Ltd
Defendant
Reagan Mwngangi Masue
Defendant
Procedural Posture
Environment and Land Case / Pre Trial Directions and Compliance Ruling
Legal Issues
- 1 Whether the parties have complied with pre-trial directions regarding filing and service of trial bundles and witness statements.
- 2 What are the consequences of non-compliance with court-ordered timelines for filing and serving documents.
Ratio Decidendi
The court found that there was widespread non-compliance with pre-trial directions by both the plaintiff and the defendants regarding the timely filing and service of trial bundles, witness statements, and documentary evidence. While recognizing the sacrosanct nature of the right to be heard, the court emphasized that such right is subject to reasonable procedural compliance. The court decided to indulge the plaintiff and allow reliance on the trial bundle dated 3.7.2023, but imposed strict timelines for filing and service, warning that failure to comply would result in dismissal of the suit or expunging of documents. The court's decision was guided by the need to uphold procedural...
Court Disposition
Directions issued with strict timelines for compliance; conditional indulgence granted to plaintiff; warning issued to all parties.
Orders
- The plaintiff is to file and serve their Trial Bundle dated 3.7.2023 along with the affidavit of service by 14.1.2024, failing which the suit shall stand dismissed.
- The defendants shall file and serve any further witness statements and/or documentary evidence and the affidavit of service by 28.1.2024; documents filed or served outside these timelines shall stand expunged.
Full Case Text
Judgment text and source record
31 paragraphs
Opondo v Mohamed & 3 others (Environment & Land Case E188 of 2022) [2023] KEELC 22335 (KLR) (20 December 2023) (Ruling)
Neutral citation: [2023] KEELC 22335 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case E188 of 2022
LN Mbugua, J
December 20, 2023
Between
Crispine Omondi Opondo
Plaintiff
and
Mohamed Bille Mohamed
1st Defendant
Anne Wavinya Mbithe
2nd Defendant
Kiambu Dandora Farmers Company Ltd
3rd Defendant
Reagan Mwngangi Masue
4th Defendant
Ruling
1. This court has conducted Pre Trial directions countless times, sometimes virtually, sometimes in open court as is evident from the proceedings of 28. 9.2022, 8. 12. 2022, 28. 2.2023, 17. 4.2023 (when matter was scheduled for hearing), 5. 6.2023 (when the court gave a final date for Pre Trial on 6. 7.2023), 6. 7.2023, 17. 7.2023, 31. 10. 2023 and 14. 12. 2023. The common thread running all through relates to the issue of none compliance. For one reason or another, parties have taken the Pre Trial process casually thus delaying the speedy trial of the case which even had a hearing date on 17. 4.2023.
2. On 14. 12. 2023, an issue was raised by advocates for the defendants that the trial bundle dubbed “Plaintiffs Amended list of witnesses dated 3. 7.2023” which the plaintiff’s advocate identified as their trial bundle was not served on them and that the same was not filed. This court is therefore required to give directions on the status of the said bundle and any other pleading, documents and witness statements which are irregularly filed.
3. I have gone through the digital portal and indeed the trial bundle of the plaintiff dated 3. 7.2023 is not filed in the digital portal (CTS).
4. I will however indulge the plaintiff so as to rely on the said trial bundle under strict conditions. The court has arrived at this decision because the issue of procedural infraction has not been confined upon the plaintiff alone. A perusal of the file in the digital portal paints a grim picture in regard to the modus operadi of filing pleadings witness statements and documentary evidence.
5. In the case of 1st defendant, they were initially relying on a bundle dated 7. 7.2022 of which on 6. 7.2023, they stated that they would not change their Trial Bundle. On 17. 7.2023, counsel for 1st defendant reiterated that they would rely on their bundle of 7. 7.2022 plus pleadings filed in an earlier bundle whose date the counsel could not trace! Finally, the 1st defendant filed their “alleged Trial Bundle” on 25. 10. 2023 and the actual one on 27. 10. 2023 way after the timelines set by the court on 17. 7.2023, where the court had given the filing of defence documents by 17. 9.2023.
6. For the 2nd defendant the court cannot trace a Trial Bundle in the portal, though a defence statement was filed on 4. 4.2023.
7. The Trial Bundle of 4th defendant was filed on 5. 7.2023 but the statement of defence cannot be traced.
8. The mess is untenable. In the case of Moschion v. Mwangi (Environment and Land Case 350 of 2018) [2023] KEELC 17144 (KLR) (27 April 2023) (Ruling) the court struck out 8 suits for none compliance with Pre Trial directions while stating that the right to be heard is sacrosanct, but a party is only entitled to a reasonable opportunity to be heard.
9. The parties herein will get away with all and sundrytransgressions. However, they are now sufficiently warned of the repercussions of none compliance with court’s directions.
10. I proceed to give directions as follows:1. The plaintiff is to file and serve their Trial Bundle dated 3. 7.2023 along with the affidavit of service by 14. 1.2024 failure to which, this suit shall stand as dismissed.2. The defendants shall file/serve any further witness statement and or documentary evidence and the Affidavit of service (in the event that there is a need to add such documents) by 28. 1.2024. Documents filed/served outside the given timelines by defendants shall stand as expunged.3. The court will proceed to give a hearing date.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Kibathi for PlaintiffM/s Awandu holding brief for Were for 3rd DefendantOduor holding brief for Mohamud for 1st Defendant