[2018] KEELC 3713 (KLR)
The court found that the 3rd and 4th defendants failed to provide a satisfactory explanation for the late discovery and intended substitution of documents dating back to 1968. The court emphasized the importance of fairness and the need for all parties to be aware of each other's case prior to the hearing, as...
Source-derived case information.
- Citation
- [2018] KEELC 3713 (KLR)
- Parties
- Plaintiff: Registered Trustee Gospel of God Church; Defendant: Elias Rimberia Mborothi; Defendant: Zaverio Nguru Mborothi; Defendant: Moses Kamundi; Defendant: Gediel Kirimi; Defendant: Francis Mucheru; Defendant: Registered Trustee, Gospel of God Church International; Defendant: Nora Ntui Mutai; Defendant: The Land Registrar, Meru; Defendant: The Honourable Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 114 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application to File Further Documents
- Outcome
- application dismissed
- Legal Topics
- Admission of Evidence, Late Filing of Documents, Pre Trial Procedure, Land Dispute Documentation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Registered Trustee Gospel of God Church
Plaintiff
Elias Rimberia Mborothi
Defendant
Zaverio Nguru Mborothi
Defendant
Moses Kamundi
Defendant
Gediel Kirimi
Defendant
Francis Mucheru
Defendant
Registered Trustee, Gospel of God Church International
Defendant
Nora Ntui Mutai
Defendant
The Land Registrar, Meru
Defendant
The Honourable Attorney General
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to File Further Documents
Legal Issues
- 1 Whether the 3rd and 4th defendants should be granted leave to file a further list of documents at this stage of the trial.
- 2 Whether the late discovery and intended substitution of documents is justified and fair to the plaintiff.
Ratio Decidendi
The court found that the 3rd and 4th defendants failed to provide a satisfactory explanation for the late discovery and intended substitution of documents dating back to 1968. The court emphasized the importance of fairness and the need for all parties to be aware of each other's case prior to the hearing, as envisaged by Article 50(1) of the Constitution. Allowing the introduction of documents that had not previously been disclosed, especially those over 50 years old, would be unjust to the plaintiff, who had not had the opportunity to review or respond to them during pre-trial procedures. The court concluded that no proper basis had been laid for the production of the additional...
Court Disposition
application dismissed
Orders
- The application by the 3rd and 4th defendants to avail further documents is disallowed.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO 114 OF 2011
REGISTERED TRUSTEE GOSPEL OF GOD CHURCH....................PLAINTIFF
VERSUS
ELIAS RIMBERIA MBOROTHI……………………...….……1ST DEFENDANT
ZAVERIO NGURU MBOROTHI.………………………….… 2ND DEFENDANT
MOSES KAMUNDI …………………………………….....….3RD DEFENDANT
GEDIEL KIRIMI ……………………………………….………4TH DEFENDANT
FRANCIS MUCHERU ………………………………….…… 5TH DEFENDANT
REGISTERED TRUSTEE,
GOSPEL OF GOD CHURCH INTERNATIONAL …….……. 6TH DEFENDANT
NORA NTUI MUTAI ……………………………….…..….… 7TH DEFENDANT
THE LAND REGISTRAR, MERU ……………….……….…. 8TH DEFENDANT
THE HONOURABLE ATTORNEY GENERAL …..……...…...9TH DEFENDANT
RULING
1. On 28. 2.2018, counsel for 3rd and 4th defendants made an application seeking leave to file a further list of documents. The basis upon which the application was made was that the said defendants had discovered the existence of a letter dated 26. 8.1968 addressed to the secretary of Gospel of God made by assistant registrar of society Mr. R.N Maclean. It is averred that this letter is very crucial to determine the distinction and existence of two societies that is Gospel of God and Gospel of God Church.
2. The other document that 3rd and 4th defendants desire to avail is to substitute the certificate of exemption dated 20. 8.1968 which is item 1 in defence list of documents. It is contended that 3rd and 4th defendants have discovered that they annexed the wrong document which is the one referring to Gospel of God Church instead of the one for Gospel of God. It is averred that the confusion arose because both documents are dated the same day and are purportedly issued by the same registrars.
3. Counsel for plaintiff has opposed the application averring that pre-trial direction had already been taken.
4. The provisions of article 50 (1) of the constitution provide that; “Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body”.
5. This provision envisages a situation where all parties are aware of each other’s case (through exchange of documents and statements of witnesses) by the time the hearing of a case is taking off.
6. The present application was only made after the court gave a ruling on 28. 2.2018 regarding production of plaintiff’s documents. Why was the present application not made earlier on?. Why is it that there is discovery of documents of 1968 at this stage of the trial? Where were those documents by the time pre-trial directions were being conducted. I find that 3rd and 4th defendants have not laid a proper basis for the production of the aforesaid documents. It would not be fair and just to avail documents which are 50 or so years old yet such documents have hitherto never been seen by the plaintiff’s side.
7. I disallow the application by the 3rd and 4th defendants to avail further documents.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 18th APRIL, 2018 IN THE PRESENCE OF:-
Court Assistant:Janet/Galgalo
Mugo for plaintiff
Muthamia holding brief for Murango Mwenda for 3rd, 4th, 5th and 6th defendants
Munene holding brief for Kiara for 7th defendants
Gichunge holding brief for Muriithi for 1st and 2nd defendants
Kiongo for 8th and 9th defendants
HON. LUCY. N. MBUGUA
ELC JUDGE