[2023] KEELC 21298 (KLR)
The court found the application unchallenged and meritorious, noting that the applicant's request was justified by the death and incapacity of witnesses. The absence of opposition from the defendants further supported the grant of leave. The court exercised its discretion to allow the plaintiff to file supplementary...
Source-derived case information.
- Citation
- [2023] KEELC 21298 (KLR)
- Parties
- Plaintiff: David Oginga Yoya; Defendant: Ishmael Odhiambo Ochieng; Defendant: Kennedy Otieno Odhiambo; Defendant: Seventh Day Adventist Church (East Africa) Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Enviromental and Land Originating Summons 46 of 2021
- Procedural Posture
- Environmental and Land Originating Summons / Ruling on Interlocutory Application
- Outcome
- Application allowed as prayed in terms of orders 1, 2, and 3; costs in the cause.
- Judges
- GMA Ongondo
- Legal Topics
- Leave to File Documents, Substitution of Witnesses, Expunging Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Oginga Yoya
Plaintiff
Ishmael Odhiambo Ochieng
Defendant
Kennedy Otieno Odhiambo
Defendant
Seventh Day Adventist Church (East Africa) Limited
Defendant
Procedural Posture
Environmental and Land Originating Summons / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the plaintiff should be granted leave to file a supplementary list of witnesses, witness statements, and further list of documents.
- 2 Whether the court should strike out or expunge certain documents from the court record.
- 3 Whether substitution of deceased witnesses is necessary in the interest of justice.
Ratio Decidendi
The court found the application unchallenged and meritorious, noting that the applicant's request was justified by the death and incapacity of witnesses. The absence of opposition from the defendants further supported the grant of leave. The court exercised its discretion to allow the plaintiff to file supplementary witness lists, statements, and documents, and to expunge certain documents from the record, in line with the overriding objective of facilitating the just, expeditious, and fair determination of the case.
Court Disposition
Application allowed as prayed in terms of orders 1, 2, and 3; costs in the cause.
Orders
- Leave granted to the plaintiff to file supplementary list of witnesses, witness statement, and further list of documents.
- Plaintiff's supplementary list of witnesses, witness statements, and further list of documents are admitted.
Full Case Text
Judgment text and source record
27 paragraphs
Yoya v Ochieng & 2 others (Enviromental and Land Originating Summons 46 of 2021) [2023] KEELC 21298 (KLR) (6 November 2023) (Ruling)
Neutral citation: [2023] KEELC 21298 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Enviromental and Land Originating Summons 46 of 2021
GMA Ongondo, J
November 6, 2023
Between
David Oginga Yoya
Plaintiff
and
Ishmael Odhiambo Ochieng
1st Defendant
Kennedy Otieno Odhiambo
2nd Defendant
Seventh Day Adventist Church (East Africa) Limited
3rd Defendant
Ruling
1. By a Notice of Motion, application dated 13th October 2023 commenced pursuant to Article 159 of the Constitution, 2010, Sections 1A, 1B and 3A of the Civil Procedure Act 2010, the applicant/plaintiff through the firm of Veronica Migai and Company Advocates, is seeking the following orders;a.That this Honourable Court be pleased to grant leave to the Plaintiff to file supplementary list of witnesses, witness statement and further list of documents.b.That upon granting prayer 1, the Plaintiffs supplementary List of witnesses, witness statements and further list of documentsc.That the Honourable Court be pleased to strike out and or expunge from the Court’s Record, Notice of change of Advocates, Plaintiffs further list of witnesses, further witness statements dated 22nd, day of September, 2023 and filed on 2nd October, 2023. d.That costs of this application be provided for.
2. The application is premised upon the applicant’s affidavit in support of it and grounds 1 to 7 stated on the face of the same. In summary, the applicant states that most of his witnesses have died and the remaining ones are aged and can barely attend court. Thus, substitution of the deceased witnesses would be necessary in the interest of justice.
3. The defendants have not responded to the application.
4. Moreover, Mr. Ongoso instructed by Mr. Bana learned counsel for the 1st and 2nd defendants and Mr. Joab Olel a representative of the 3rd defendant/respondent, have no objection to the application.
5. In the premises, I find the application unchallenged and meritorious.
6. Accordingly, the application is hereby allowed in terms of orders 1, 2 and 3 sought therein and as stated in paragraph 1(a), (b) and (c) herein above.
7. Costs of the application be in the cause.
8. It is so ordered.
DELIVERED, DATED AND SIGNED AT HOMA BAY THIS 6TH DAY OF NOVEMBER, 2023. G.M.A ONG’ONDOJUDGE