[2025] KEELC 4262 (KLR)

Wanderi & another v Madisurp Investments & 7 others; Kamau (Intended Interested Party) (Environment & Land Case 13 of 2024) [2025] KEELC 4262 (KLR) (Environment and Land) (5 June 2025) (Ruling)

Neutral citation: [2025] KEELC 4262 (KLR)

Republic of Kenya

In the Environment and Land Court at Naivasha

Environment and Land

Environment & Land Case 13 of 2024

MC Oundo, J

June 5, 2025

Between

Mary N Wanderi

1st Plaintiff

Walter O Ndenda

2nd Plaintiff

and

Madisurp Investments

1st Defendant

Peter Gitiya Ndigi

2nd Defendant

Lawrence Maina Mwangi

3rd Defendant

Beatrice Wairimu Kiiru

4th Defendant

Joseph Muiruri

5th Defendant

District Land Registrar Naivasha

6th Defendant

National Land Commission

7th Defendant

County Government of Nakuru

8th Defendant

and

Joseph Muchina Kamau

Intended Interested Party

Ruling

1. Before me for determination are two Applications, whereas the first one is dated 4th February, 2025, the second one is dated 25th February, 2025. For ease of reference, the parties herein shall be referred to as they appear on the heading.

2. The Application dated 4th February, 2025, is a Notice of Motion Application brought by the 3rd Defendant pursuant to the provisions of Section 1A, 1B, 3, and 3A of the Civil Procedure Act, Order 18 Rule 10 and Order 51 Rule 1 of the Civil Procedure Rules 2010, Section 146 (4) of the Evidence Act, Article 159(2) (d) of the Constitution 2010 and all other enabling provisions in which he sought for the following orders:i.That the Honorable Court be pleased to grant him leave to file his List and Bundle of Documents out of time.ii.That the Honorable Court upon allowing order No. (i), deem the 3rd Defendant’s list of documents filed as properly on record.iii.That the Honorable Court upon allowing order Nos. (i) and (ii) above be please to recall the 3rd Defendant, for further examination in chief, for further cross-examination and re-examination respectively for the purposes of adducing evidence in the list of documents.

3. The Application was supported by the grounds therein and a Supporting Affidavit of an even date sworn by Lawrence Maina Mwangi, the 3rd Defendant herein who deponed that the instant suit had come up for fresh hearing on 4th February, 2025 wherein the Counsel for the Plaintiff had objected to the 3rd Defendant’s list of documents being admitted as part of his evidence because the said documents had not been produced and that the only thing that had been remaining was the re-examination of the 3rd Defendant.

4. That considering the crucial nature of the said documents to the just and expeditious resolution of the matter herein as well as the inadvertent nature of the failure to produce the same as exhibits and further that parties had been served, it was only fair that the Court grants the leave to file the list of Documents out of time and admit the same as evidence. That since the said documents had been extensively referred to in the proceedings and during his testimony, there would be exhaustive interrogation by all parties for which they would also be crucial in assisting the court to determine the matter conclusively.

5. In response and in opposition to the said Application, the Plaintiffs, vide their Replying Affidavit dated 20th February 2025, sworn by Walter Otieno Odera, the 2nd Plaintiff herein gave a history of the inception of the matter stating that after the 3rd Defendant had testified, he had been cross examined and re-examined. That the instant application was therefore tantamount to trial by ambush which the court must not entertain. That no explanation had been proffered by the 3rd Defendant as to why he did not file the said bundle of documents during the pretrial and/or before the Plaintiffs had closed their case, yet he had the said documents in his possession since the year 2013 when the instant suit had been filed against him.

6. That since the 3rd Defendant had not mentioned in his witness statement and/or list of documents, the bundle of documents that the wished to introduce as new evidence, the same would be prejudicial to the Plaintiffs because they had already closed their case.

7. That further, the instant suit having been filed over 12 years ago, the 3rd Defendant had more than enough time to file all his bundle of documents, hence the inordinate delay by the 3rd Defendant in filing the instant application was inexcusable and prejudicial to the Plaintiffs. He thus deponed that the 3rd Defendant’s Application herein was frivolous, meritless and a clear abuse of the court process thus the same should be dismissed with costs.

8. The 2nd, 4th, 6th and 9th Defendants did not oppose the 3rd Defendant’s Application. The 1st, 5th, 7th and 8th Defendants on the other hand did not participate in the 3rd Defendant’s Application herein.

9. The second Application dated 25th February, 2025 is a Notice of Motion brought by the Intended Interested Party pursuant to the provisions of Order 1 Rule 10(2) of the Civil Procedure Rules 2010 and all other enabling provisions of law in wherein he sought to be joined as an interested party to the instant suit.

10. The Application was supported by the grounds therein and a Supporting Affidavit of an even date sworn by Joseph Muchina Kamau, the Intended Interested Party herein who deponed that he had lawfully purchased the parcel of land Title No. Gilgil Petrol Station R35/93/17 from one Kariu Nyage who had in turn purchased it from one Rose Muthoni Ndegwa who had been allotted the same in the year 1994 and had complied with the conditions therein and had remitted the required payments.

11. That since the said parcel of land was a subject in the present suit, his presence was necessary in order to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the instant suit. He thus deponded that it was imperative, in the interest of justice that his application be allowed.

12. In response and in opposition to the Intended Interested Party’s Application, the 2nd Plaintiff vide his Replying Affidavit dated 7th April 2025 deponed that the Plaintiffs were the legal owners of L.R Gilgil Township Block 3/673 measuring 1. 530 Ha which was the subject suit property before the court. That on the other hand, the 4th and 9th Defendants owned L.R No. Gilgil Township Block 3/675 and L.R No. Gilgil Township Block 3/675 respectively which properties were also subject matter in the instant suit.

13. That whereas the Intended Interested Party had alleged to be interested in Title No. Gilgil Petrol Station R35/93/17, the same had no nexus with the suit properties herein, he had not drawn any nexus between the said property and the suit properties herein. That the application was therefore frivolous, premature, ill conceived, without merit and an abuse of court’s process and had the intention to waste court’s time hence the same should be dismissed with costs.

14. The Defendants did not participate in the Intended Interested Party’s Application.

15. Directions were taken for the disposal of both applications by way of written submissions wherein the 3rd Defendant in support of his application dated 4th February 2025 and in reliance to the principles under the provisions of Sections 1A, 1B, 3 and 3A of the Civil Procedure Act submitted that in judicial proceedings such as this, it was expected that a decision that would affect the rights of a litigant be made fairly so as not to deprive him/her the opportunity to be heard on a key issue before final judgement.

16. That the instant application had been made urgently upon discovery of the omission hence it was fair and just that the Court accesses all relevant evidence in order to determine the matter on merit where all parties would have an opportunity to be heard in a fair trial. He then placed reliance in the decisions in the case of St. Patrick’s Hill School Limited v Bank of Africa Kenya Limited [2018] KEHC 2539 (KLR) and Philip Chemwolo & Another v Augustine Kubende [1986] eKLR. He then framed two (2) issues for determination as follows:i.Whether the inclusion of the list and bundle of documents is necessary for the just determination of the case.ii.Whether recalling the 3rd Defendant as a witness will prejudice the Plaintiff or is in the interest of justice under the applicable legal provisions.

17. On the first issue for determination as to whether the inclusion of the list and bundle of documents was necessary for the just determination of the case, he submitted that the said documents had extensively been referred to in the proceedings and during his testimony. It was thus his submission that the omission of the said documents from the initial filing had not been intentional but due to an oversight. That indeed, his Counsel had sought to rectify the anomaly by notifying the court and the parties for which the only hurdle that remained was to formally have them on record to ensure that all the relevant evidence was in the purview of the Court. That the additional documents were crucial in resolving the land dispute as they provided clarity on ownership, possession and other material facts.

18. He hinged his reliance on the decisions in the case of Reg v Gaming Board Ex. Benaim 1970 2 QB 417 and Githere v Kimungu [1976-1985] E.A. 101 to submit that procedural rules were tools designed to facilitate adjudication of disputes; that they ensured orderly management of cases hence Courts and litigants (and their lawyers) alike were joined to abide strictly by the rules. That nonetheless, the invocation of the oxygen principle was not to compel the Honorable Court to suspend procedural rules but rather, an invitation for the court to allow the inclusion of the inadvertently omitted documents in the justifiable circumstances herein and for the justifiable cause of a fair trial for all parties.

19. On the second issue for determination as to whether recalling the 3rd Defendant/Applicant as a witness would prejudice the Plaintiffs or was in the interest of justice under the applicable legal provisions, he placed reliance in the decided case of J.C. Patel v D. Joshi 1952 19 EACA12 to submit that the Plaintiffs would not be prejudiced in any manner since the provisions under the evidence Act offered a chance to recall witnesses for further examination, cross-examination and/or re-examination so as to get to the bottom of issues raised in the suit. That subsequently, the probability of prejudice on the part of the Plaintiffs was significantly reduced even as parties were allowed to be on equal arms so that their case could be heard on merits rather than letting the same be decided on procedural technicalities. He placed reliance on the provisions of Article 159 (2) (d) of the Constitution to submit that the Plaintiffs would neither be prejudiced by the production of the bundle of documents nor the recalling of the 3rd Defendant for examination as they would have an opportunity to challenge the evidence produced. That on the other hand, denying the application would result in a miscarriage of justice, as the court would be deprived of considering all pertinent evidence. Reliance on the decisions in the case of Bernard Mbaluka Ngala v Zuhura Njeri Kuria & 2 Others [2022] eKLR and Clement Maskati Mvuko v Republic [2018] eKLR. He thus urged the Court to grant his prayers.

20. That Plaintiffs’ Submissions on the other hand was based on one (1) issue for determinations to wit; whether the 3rd Defendant should be granted leave to file his bundle of documents out of time.

21. Their submission had been that the 3rd Defendant’s Application was defective and should be struck out with costs having been brought under the provisions of Order 18 Rule 10 of the Civil Procedure Rules, 2010 and Section 146 of the Evidence Act that did not speak to the leave of the court.

22. They placed reliance on the provisions of Order 2 rule 13 and Order 7 rule 5 of the Civil Procedure Rules, 2010 as well as the decided case of Alois Oceano D’sumba v Rajnikant Narshi Shah & another [2017] eKLR to submit that the hearing of the present suit having commenced and the Plaintiff having closed their case, it would be prejudicial to them to have to go back to the drawing board were the 3rd Defendant/Applicant permitted to file the said documents and as such, the course of events may entail considerable delay in the disposal of the present suit. That further, the 3rd Defendant being a party to the instant suit and having the knowledge of the case against him, had sufficient time to file the said bundle of documents before the Plaintiff had closed their case and before he had given his evidence, cross-examined and re-examined. That the 3rd Defendant should not be allowed to cure the defects in his evidence through the present application. They thus urged the court to find no merit in the 3rd Defendant’s Application and dismiss the same with costs to the Plaintiffs.

23. In relation to the second Application dated the 25th February 2025, despite parties having taken directions on the 8th of April 2025 to dispose the same by way of written submissions To be filed within 14 days, there had been no compliance

Determination. 24. On the first application dated the 4th February, 2025, I have considered the same, the submissions by Counsel, the authorities cited and the applicable law and find that the issue that arises for determination herein as being;i.Whether the 3rd Defendant should be allowed to adduce additional documents/evidence and be recalled.

25. It is indeed no doubt that the Plaintiffs in this case had closed their case wherein the 3rd Defendant/Applicant had also testified, was cross examined and stood down for re-examination. The provisions of Order 3 and 7 of the Civil Procedure Rules mandate parties to a suit to file their respective list of documents as well as a list of witnesses’ statements in support of their case while instituting a suit. The general tenor of the Civil Procedure Rules is that parties ought to disclose their case at an early stage to avoid ambush, delay and increase of costs, and this requirement is imposed on a Defendant when filing the defence and counterclaim, if any, under Order 7 rule 5 of the Rules.

26. Upon the satisfaction at the pre-trial Conference, under Order 11 of the Rules, the matter was set down for hearing where it was expected that all the parties will have made full disclosure so that either party knows the case that they will face at the trial.

27. This notwithstanding even after the Pre-trial conference, it is trite that a court has the power to allow the parties to call further witnesses or produce further documents, as per the provisions of Order 18 rule 10 of the Civil Procedure Rules and Section 146 of the Evidence Act, so as to ensure that each party is afforded a fair trial as guaranteed under Article 50 (1) of the Constitution.

28. In the case of Johana Kipkemei Too v Hellen Tum [2014] eKLR, the Court held as follows;“The Court as a shrine of justice, has a mandate to do justice to all parties and not to be too strictly bound by procedural technicalities. This flows from the provisions of Article 159 (2) (d) of the Constitution. Where such evidence can be adduced, without causing undue prejudice to the other party, the Court ought to allow the application, so as to allow such party, the opportunity to present his case in full. The Court may consider various factors including, but not restricted to, the earlier availability of the witness, the discovery of a new document, and the stage of the proceedings at which the additional evidence is sought to be introduced. If for example, the trial has not started, little prejudice may be caused to either party if one is permitted to introduce additional evidence. The prejudice to the other party no doubt increases as the trial progresses. But it is up to each Court to weigh the surrounding circumstances of each case, and determine whether it will be in the interests of justice, to allow such evidence to be tendered, though outside the time frame provided by the rules’’.

29. In the instant case, however, the trial had reached an advanced stage/its tail end where allowing the 3rd Defendant to file new documents would amount to allowing them to make up their case and fill gaps at the very end of the trial.

30. This notwithstanding, Courts have held time and again that the mistake of Counsel ought not to be visited upon a litigant and that the Court should endeavor to assert and preserve a litigant’s rights to be heard without placing undue weight on a litigant’s Counsel’s mistake.

31. As it was held in the case of Pinnacle Projects Limited v Presbyterian Church of East Africa, Ngong Parish & another [2019] eKLR that;“Although in particular circumstances errors, omissions, missteps and blunders are made by parties or their Counsels during pre-trial or in the course of the trial to find appropriate balance fundamental requisite of due process of law should be accorded a purposeful meaning to protect right to a fair hearing. The Civil Procedure Act and Rules provides for time-frame rules and commitments for parties to comply with discovery; dates for closure of pleadings, filing of witness statements, production of expert material where applicable, scheduling of cases and disposition dates. Needless to say that all these commitments are aimed at each litigant to have adequate notice and fair understanding of the litigation road ahead of time of disposition. Since the procedural directions are meant to serve substantial justice it follows therefore careful weight should be given to facially legitimate and bonafide reason for any procedural errors or omission in order to exercise discretion for the interest of justice’’.

32. I find that although the Plaintiffs/Respondents have opposed the Application for valid reasons that they had already given evidence and that by allowing the Application at this late stage of the proceedings, they would be prejudiced, they did not however demonstrate how allowing the documents and recalling the 3rd Defendant would be prejudicial to their case.

33. Indeed, a casual look the documents sought to be produced clearly shows that most of them had already been alluded to during the hearing and which also formed part of the court records. I therefore find that the same will not amount to an ambush but will in fact enable the court arrive at a just determination of the matter. The Defendants should be given an opportunity to present or defend their case fairly.

34. To this end and in the spirit of Article 50 (1) of the Constitution and Section 3A of the Civil Procedure Act, I allow the Application with directions that the documents be filed and served upon the parties within 7 days of this ruling, who shall have the right to file rejoinder documents within 7 days upon service and to call or recall the witnesses for further examination in chief, cross-examination or re-examination on matters arising therein. The cost of this Application shall abide the outcome of the main suit.

35. On the second application dated the 25th February 2025 wherein the intended Interested party seeks to be joined to the proceedings, on the 8th April 2024 Parties took directions to dispose the said application by way of written submissions which were to be filed within 14 days. There had been no compliance.

36. It is now a settled practice under the new constitutional dispensation that filing of written submissions is the norm as written submissions serve the purpose of expedience and amounts to addressing the court on the evaluation of the evidence of each party and analysis of the law. It is therefore trite that parties who fail to file their submissions on an application as ordered by the court are deemed as parties who have failed to prosecute their application and therefor that application is liable for dismissal. The filing of submissions having been ordered, the failure by the parties herein to exercise the leave granted to file written submissions clearly demonstrated inertia and inordinate delay, lack of interest and/or seriousness on their part in the prosecution of the matter.

37. The Court of Appeal in Rowlands Ndegwa and 4 Others v County Government of Nyeri and 3 Others; Agriculture, Fisheries and Food Authority & Another (Interested Parties) [2020] eKLR, citing with approval the decision of the High Court in, Winnie Wanjiku Mwai v Attorney General & 3 Others [2016] eKLR, observed as follows:“With regard to dismissal for want of prosecution, there are indeed no hard and fast rules as to the manner in which the inherent power and discretion to dismiss an action for want of prosecution is to be exercised. It is however generally accepted that dismissal will be invited if there should be a delay in the prosecution of the action and the Respondent is prejudiced by the delay with attention also being paid to the reasons for the inactivity….”

38. The mode of hearing of both the Application and Preliminary Objection having been accepted by the parties, and there having been no compliance to prosecute the same, I am persuaded to dismiss the said application dated the 25th February 2025, which I now do, with no costs.

DATED AND DELIVERED VIA MICROSOFT TEAMS AT NAIVASHA THIS 5TH DAY OF JUNE 2025. M.C. OUNDOENVIRONMENT & LAND – JUDGE