[2015] KEELC 329 (KLR)
The court held that the plaintiff failed to comply with the mandatory procedural requirements for filing and serving witness statements. The plaintiff neither filed the witness statement with the plaint nor sought leave of court to file it later. The attempt to introduce the statement after the plaintiff had already...
Source-derived case information.
- Citation
- [2015] KEELC 329 (KLR)
- Parties
- Plaintiff: Susan Chepatet Lokwangi; Defendant: Powon Lokwang Komolmoi; Defendant: Joel Keditukei
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 116 of 2013
- Procedural Posture
- Land Case / Interlocutory Ruling on Admissibility of Late Filed Witness Statement
- Outcome
- Plaintiff's further list of witness and witness statement filed without leave of court are expunged from the record.
- Judges
- EO Obaga
- Legal Topics
- Admissibility of Evidence, Late Filing of Documents, Leave of Court, Witness Statements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Susan Chepatet Lokwangi
Plaintiff
Powon Lokwang Komolmoi
Defendant
Joel Keditukei
Defendant
Procedural Posture
Land Case / Interlocutory Ruling on Admissibility of Late Filed Witness Statement
Legal Issues
- 1 Whether the plaintiff can introduce a further list of witness and witness statement filed without leave of court after the hearing has commenced.
- 2 Whether failure to comply with procedural rules regarding filing and serving witness statements can be excused as a mere technicality.
Ratio Decidendi
The court held that the plaintiff failed to comply with the mandatory procedural requirements for filing and serving witness statements. The plaintiff neither filed the witness statement with the plaint nor sought leave of court to file it later. The attempt to introduce the statement after the plaintiff had already testified and been cross-examined was deemed an abuse of process, aimed at shoring up the plaintiff's case in response to issues raised during trial. The court emphasized that procedural rules exist to ensure fairness and order in proceedings, and cannot be disregarded as mere technicalities. Allowing parties to file documents at will would undermine the integrity of the...
Court Disposition
Plaintiff's further list of witness and witness statement filed without leave of court are expunged from the record.
Orders
- The further list of witness and witness statement filed by the plaintiff on 5/6/2015 are expunged from the court record.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 116 OF 2013
SUSAN CHEPATET LOKWANGI .................................... PLAINTIFF
VERSUS
POWON LOKWANG KOMOLMOI ......................... 1ST DEFENDANT
JOEL KEDITUKEI ...................................................... 2ND DEFENDANT
R U L I N G
At the hearing of this suit on 9/6/2015, the counsel for the defendants objected to the introduction of a list of witness and witness statement which had been filed on 5/6/2015 and served in court shortly before the case could start. The counsel for the defendant argued that the statement was filed in court too late without leave of the court and that it was specifically tailored to assist the plaintiff's case. The counsel asked that it be expunged from the record.
Mr. Barongo for the plaintiff urged the court to disregard the submissions by counsel for the defendants arguing that this was just a procedural technicality which should not affect the statement. Mr. Barongo argued that the plaintiff had not closed her case and that the statement and evidence of the witness being introduced will not prejudice the defendants as the defendants counsel have the evidence in advance. He argued that the evidence being introduced will assist the court to reach a fair decision.
I have considered the submissions by both counsel for the plaintiff and defendants. The hearing of this case commenced on 5/3/2015 when the plaintiff testified and completed her evidence. The case was adjourned to 9/6/2015 for further hearing. On 5/6/2015, the plaintiff filed a further list of witness an statement.This list and witness statement was not served upon the defendants' counsel until shortly before the case was called out for hearing on the date of hearing. The list of witness and statement was filed without leave of court.
Order 3 Rule 2 of the Civil Procedure Rules is clear on which documents to accompany a suit. Order 3 Rule 2(b) and (c) provide that a suit shall be accompanied by a list of witnesses and written statements signed by the witnesses. The proviso to Order 3 Rule 2 provides that where statements are not filed together with the plaint, a party who has not filed the statements may with leave of court furnish the statements at least fifteen days prior to the trial conference under Order 11.
In the instant case, the plaintiff did not provide the name of the witness or his statement at the filing of the suit. She also never sought leave of the court to file the further statement or list of witnesses. The plaintiff's failure to follow the procedure required or even ask for court's leave cannot be excused on the ground that this was a procedural technicality which can be overlooked by the court. The rules guiding the filing of list of witnesses and witness statement was meant to achieve the overriding objective as stipulated under Section 1A and 1B of the Civil Procedure Act.
If parties were to be allowed to file documents at any time they wish or file statements as they wish and without leave, then there is no need for having the rules. Rules have to be followed. The court can only excuse a party for example in failure to serve a document within the days required but it cannot excuse a party who files documents without leave of court and too late in the day. Parties cannot be allowed to build their case as the trial progresses particularly where the plaintiff has testified and feels that he/she should introduce a certain line of evidence to assist his/her case as the plaintiff is trying to do in this case. In the present case the plaintiff had been cross examined as to how she got married to the first defendant. In re-examination she was asked if she could provide evidence regarding her marriage. It is at this time that she said that she can avail a witness who was present during negotiations for dowry. This is what prompted her to go and file a further list of witness and witness statement. It is clear that this list and witness statement was specifically made to assist her case. It was made in an unprocedural manner. The same cannot be allowed. The list of witness and witness statement are hereby expunged from the court record.
It is so ordered.
Dated, signed and delivered at Kitale on this 18th day of June, 2015.
E. OBAGA
JUDGE
In the presence of Mr. Boborio for Mr. Katina for plaintiff.
Court clerk – Isabellah.
E. OBAGA
JUDGE
18/6/2015