[2018] KEELC 2338 (KLR)
The court found that the defence list of documents was filed in contravention of clear pre-trial directions, which required all documents to be filed and served within 14 days from 29.05.2017. No explanation was provided for the late filing. Allowing the document after the plaintiff had testified would amount to...
Source-derived case information.
- Citation
- [2018] KEELC 2338 (KLR)
- Parties
- Plaintiff: Yuda Imunya alias Yuda K. Imunya; Defendant: Atanasio Kibaara
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 245 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Expunge Defence List of Documents
- Outcome
- Objection upheld; defence list of documents dated 10.11.2017 and filed on 13.11.2017 expunged from the record.
- Legal Topics
- Admissibility of Evidence, Pre Trial Directions, Late Filing of Documents, Fair Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Yuda Imunya alias Yuda K. Imunya
Plaintiff
Atanasio Kibaara
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Expunge Defence List of Documents
Legal Issues
- 1 Whether the defence list of documents filed after the close of pre-trial directions should be expunged from the record.
- 2 Whether admitting the late-filed document would prejudice the plaintiff and contravene the right to a fair hearing.
Ratio Decidendi
The court found that the defence list of documents was filed in contravention of clear pre-trial directions, which required all documents to be filed and served within 14 days from 29.05.2017. No explanation was provided for the late filing. Allowing the document after the plaintiff had testified would amount to ambush and would undermine the fairness of the proceedings, contrary to Article 50(1) of the Constitution. The court distinguished the issue from a mere procedural technicality, holding that it went to the root of fairness and justice. Accordingly, the objection was upheld and the late-filed document was expunged from the record.
Court Disposition
Objection upheld; defence list of documents dated 10.11.2017 and filed on 13.11.2017 expunged from the record.
Orders
- The defence list of documents dated 10.11.2017 and filed on 13.11.2017 is hereby expunged from the records.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC CASE NO. 245 OF 2016
YUDA IMUNYA alias YUDA K. IMUNYA......................................PLAINTIFF
VERSUS
ATANASIO KIBAARA...................................................................DEFENDANT
RULING
1. Counsel for plaintiff has applied to this court to have the defence list of document filed on 10. 11. 2017 expunged from the record. The basis upon which the application is made is that pre-trial directions closed on 20. 9.2017 and plaintiff testified on 13. 11. 2017. Plaintiff will therefore stand to be prejudiced if this document is admitted in evidence.
2. Defence counsel avers that it will be in the interest of justice for this document to be admitted. Defence has urged the court not to hold unto procedural technicalities.
3. I find that on 29. 05. 2017, the court gave directions as follows: “That all documents (if any) to be filed and served within 14 days”. It follows that all documents which parties were to rely on ought to have been filed and served by 13. 6.2017. No explanation has been advanced as to why this document was availed to the court in contravention of a court order.
4. I am inclined to find that this is not an issue of procedural technicality to be overlooked. It goes into that root of what is fair and just. Article 50 (1) of the constitution provides 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. There can be no fairness if a party is allowed to unleash documents when the other apposite party has already testified and has been cross examined.
6. In the case of Johana Kipkemoi Too versus Hellen Tum ELC 975 of 2012 (Nairobi),it was held that in terms of article 50 of the constitution, a trial would not be fair if a party was allowed to hide evidence and ambush the other party at the hearing.
7. In light of the foregoing, the objection is upheld. The document in the list dated 10. 11. 2017 and filed on 13. 11. 2017 is hereby expunged from the records.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 25TH DAY OF JULY, 2018
IN THE PRESENCE OF:-
Court Assistant:Janet/Galgalo
Carlpeters Mbaabu for plaintiff
Defendant
HON. LUCY. N. MBUGUA
ELC JUDGE