[2019] KEELC 4672 (KLR)
The court found that the defence had not provided a reasonable basis for introducing a new witness after the plaintiff had closed their case. The procedural regime under Order 11 of the Civil Procedure Rules is designed to ensure full disclosure of evidence before trial to prevent trial by ambush. The absence of...
Source-derived case information.
- Citation
- [2019] KEELC 4672 (KLR)
- Parties
- Plaintiff: Pauline Rigiri Muthiora (Suing as the legal representative and Administratix of the estate of Genaro Muthiora M’Mbirithi (Deceased)); Defendant: Zachary Muriki Joseph (Sued as the legal Representative and Administrator of the Estate of Joseph M’Ikunyua M’Iring’o (Deceased))
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 241 of 2017
- Procedural Posture
- Land and Property / Ruling on Application to File Further Witness Statement After Close of Plaintiff's Case
- Outcome
- Application to file further statement and call additional witness dismissed.
- Legal Topics
- Late Filing of Evidence, Trial by Ambush, Pre Trial Compliance, Inherent Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pauline Rigiri Muthiora (Suing as the legal representative and Administratix of the estate of Genaro Muthiora M’Mbirithi (Deceased))
Plaintiff
Zachary Muriki Joseph (Sued as the legal Representative and Administrator of the Estate of Joseph M’Ikunyua M’Iring’o (Deceased))
Defendant
Procedural Posture
Land and Property / Ruling on Application to File Further Witness Statement After Close of Plaintiff's Case
Legal Issues
- 1 Whether the defence should be allowed to file a further statement and call an additional witness after the plaintiff has closed their case.
- 2 Whether the application to introduce new evidence after close of the plaintiff's case is in line with Order 11 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the defence had not provided a reasonable basis for introducing a new witness after the plaintiff had closed their case. The procedural regime under Order 11 of the Civil Procedure Rules is designed to ensure full disclosure of evidence before trial to prevent trial by ambush. The absence of defence counsel at the pre-trial compliance stage did not justify the late application. The court exercised its discretion and inherent jurisdiction, concluding that the application was unmerited and dismissing it to uphold procedural fairness and the integrity of the trial process.
Court Disposition
Application to file further statement and call additional witness dismissed.
Orders
- The application by the defence to file a further statement and call Mary Kaisangi as a witness is dismissed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 241 OF 2017
PAULINE RIGIRI MUTHIORA
(Suing as the legal representative
and Administratix of the estate of
GENARO MUTHIORA M’MBIRITHI (DECEASED).............................PLAINTIFF
VERSUS
ZACHARY MURIKI JOSEPH
(Sued as the legal Representative
andAdministrator of the Estate of
JOSEPH M’IKUNYUA M’IRINGO (DECEASED).............................DEFENDANT
RULING
1. Plaintiff’s case was closed on 6. 11. 2018. Thereafter, counsel for defence prayed to be allowed to file a further statement to call one Mary Kaisangi as a witness. This application was objected to on the basis that this was not in the spirit of order II of the Civil Procedure Rules. Plaintiff’s Counsel wondered why this evidence had been concealed.
2. In the case of Interactive Gaming and lotteries limited vs Flint East Africa Ltd and two others, civil case no.115 of 2011 Nairobi, the court had observed as follows; “it is true that the plaintiff has closed his case. The current procedural legal regime especially order 11 of the Civil Procedure Rules is meant to ensure that the parties to a suit disclose their evidence upfront in order to avoid trial by ambush”.
3. It is not lost to this court that defence counsel was absent on 13. 12. 2017, which date had been given by the court to ascertain compliance. This is perhaps a wakeup call for advocates to take pre-trial processes very seriously.
4. The court has inherent jurisdiction to make such orders as may be necessary to meet the ends of justice. But such jurisdiction must be anchored on reasonable grounds. The defence has not laid a basis as to why they intend to introduce witnesses who were hitherto unknown when plaintiff’s case was progressing.
5. I find that the application is unmerited and the same is dismissed
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 13TH FEBRUARY, 2019 IN THE PRESENCE OF:-
C/A: Kananu
Kiogora for plaintiff
Thangicia for defendant
Plaintiff
Defendant
HON. LUCY. N. MBUGUA
ELC JUDGE