[2016] KEELC 1155 (KLR)
The court held that the plaintiff's attempt to file new documents and witness statements on the day of hearing, after the hearing date had been fixed for eight months, was unjustified and amounted to an ambush against the defendant. The court emphasized the mandatory nature of Practice Direction 31, which requires...
Source-derived case information.
- Citation
- [2016] KEELC 1155 (KLR)
- Parties
- Plaintiff: Rose Nyambura Thumbi (Administratix of Hezekiah Mathara Gathende, Deceased); Defendant: Mary Wnajiru Njuguna
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 39 of 2009
- Procedural Posture
- Land and Property Suit / Ruling on Adjournment and Costs
- Outcome
- Hearing adjourned; plaintiff condemned to pay costs and court adjournment fees.
- Judges
- FM Njoroge
- Legal Topics
- Adjournment of Hearing, Filing of Documents, Practice Directions Compliance, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Nyambura Thumbi (Administratix of Hezekiah Mathara Gathende, Deceased)
Plaintiff
Mary Wnajiru Njuguna
Defendant
Procedural Posture
Land and Property Suit / Ruling on Adjournment and Costs
Legal Issues
- 1 Whether the plaintiff should be allowed to file new documents and witness statements on the hearing date.
- 2 Whether the defendant is entitled to an adjournment and costs due to late filing attempt by the plaintiff.
- 3 Whether the ELC registry's refusal to accept late documents is justified under the Practice Directions.
Ratio Decidendi
The court held that the plaintiff's attempt to file new documents and witness statements on the day of hearing, after the hearing date had been fixed for eight months, was unjustified and amounted to an ambush against the defendant. The court emphasized the mandatory nature of Practice Direction 31, which requires all documents to be filed and served at least three days before any hearing. The ELC registry's refusal to accept late documents was found to be proper and based on clear legal authority. In the interest of justice, the court adjourned the hearing but condemned the plaintiff to pay the defendant's advocate's costs for the day, the costs for the defendant's two witnesses who...
Court Disposition
Hearing adjourned; plaintiff condemned to pay costs and court adjournment fees.
Orders
- Hearing of the suit is adjourned.
- Plaintiff to pay the defendant's advocate's costs for today.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
MILIMANI LAW COURTS
ELC CASE NO. 39 OF 2009
ROSE NYAMBURA THUMBI……………………………………..PLAINTIFF
Administratix of Hezekiah Mathara Gathende (Deceased)
VERSUS
MARY WNAJIRU NJUGUNA……………….………….……….DEFENDANT
RULING
In this matter a notice to show cause why the suit should not be dismissed for want of prosecution in terms of Order 17 of the Civil Procedure Rules was issued on 7th May, 2015. The parties showed cause on 28/5/2015.
Mr. Kingara for the Defendant explained to the Court that HCCC No. 387 of 2010 (O.S) ELC had been consolidated with HCC. ELC No. 39 of 2009. He told the court that both parties were eager to be heard.
Mr. Asimuli, holding brief for Mr. Mwicigi Kinuthia for the Plaintiff was in agreement. It should be noted that because of the consolidation, Mr. Kingara who was the advocate for the Defendant on 28/5/2015 is now referred as the advocate for the Plaintiff. Mr. Kinuthia is now the advocate for the Defendant. Hearing was fixed for 21/1/2016, today.
Today, Mr. Kinuthia for the Plaintiff told the court that he wanted to file 3 new documents and some further witness statements. He also told the court that if he was allowed to file the apposite documents he would serve them upon the Defendant’s advocate after which the hearing of the suit could proceed. Mr. Kingara for the Defendant objected. He said that he was ready to proceed with the hearing but without the documents Mr. Kinuthia intended to file. He told the court that he would need time to peruse any new documents and to seek appropriate instructions from his client.
I do note that the hearing date in this matter was fixed almost 8 months ago. I do not understand the rationale of the Plaintiff’s attempt to file new documents on the day the suit was slated for hearing. If the court would hear the suit, this would amount to a veritable ambush against the Defendant. The Plaintiff’s and his advocate’s conduct is reprehensible and amounts to abuse of the court process.
Mr. Kinuthia complained that it is only the ELC Registry in Nairobi that insisted on not receiving documents not brought to court less than 3 days before a hearing date. He expressed the view that this requirement had no basis. I wish to bring Mr. Kinuthia’s attention to Practice Direction 31 of the Practice Directions concerning the ELC Court which are contained in Gazette Notice No. 5178 of 28th July, 2014. The direction reads as follows: -
“Three days before any hearing, whether of an application or a full hearing, parties must ensure all documents are properly filed and that proper service has been effected.”
The use of the word “must” is of particular significance. The refusal by the ELC registry to accept the filing of documents on the morning of the hearing of this suit had sound and unimpeachable basis.
Nevertheless, in the interest of justice, I find myself with no other alternative but to adjourn the hearing of this suit. I find it necessary, however, to condemn Mr. Kinuthia’s client to pay advocate Kingara’s costs for today and also to pay costs for today for Mr. Kingara’s 2 witnesses who were present in court. Mr. Kinuthia’s client is also condemned to pay the Court Adjournment Fees (CAF).
It is so ordered.
Delivered in open court at Nairobi this 27th day of January, 2016 in the presence of: -
Court clerk – Daniel
P.M. NJOROGE
JUDGE