Ethics & Anti Corruption Commission v Wilson Gacanja, William Kipserem Busienei, Industrial & Commercial Development Corporation, Arthur Mbulika Usagi, Elizabeth Wanjiru Usagi & Joyce Kanaga Andembe [2019] KEELC 183 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KITALE

ELC NO. 46 OF 2010

ETHICS & ANTI CORRUPTION COMMISSION.........................................................PLAINTIFF

VERSUS

WILSON GACANJA................................................................................................1ST DEFENDANT

WILLIAM KIPSEREM BUSIENEI......................................................................2ND DEFENDANT

INDUSTRIAL & COMMERCIAL DEVELOPMENT CORPORATION........3RD DEFENDANT

DR. ARTHUR MBULIKA USAGI........................................................................4TH DEFENDANT

ELIZABETH WANJIRU USAGI..........................................................................5TH DEFENDANT

JOYCE KANAGA ANDEMBE.............................................................................6TH DEFENDANT

RULING

1. The 2nd defendant prays for leave to file his documents in the matter. Ms. Mwemeke informs the court that she was appointed only 2 weeks ago and upon perusal she has found that the documents were not filed.  On 29/1/2019, this court granted the 2nd defendant leave to file a defence, after he applied formally to court, alleging non-service of the summons upon him as the basis for non-filing of the defence.

2. The unsavoury history of the 2nd defendant’s dalliance with a number of law firms, purportedly appointed to represent him in the matter, some on the eves of the hearing of this matter, is outlined in paragraph 2 of that ruling. Now Ms. Mwemeke has joined the long and still growing list of those advocates and her recent appointment forms a seductive ground for the granting of leave to file fresh documents in this matter on behalf of the 2nd defendant, a feat which the 2nd defendant’s erstwhile counsel failed to achieve during their brief stints.

3. This court has already pronounced the 2nd defendant’s conduct in this suit to be improper during the earlier stages of this litigation and, worse still, it found that he had no valid ground for failure to file a defence. It also found the 2nd defendant to be less than candid in his allegation of non-service in the ruling dated 29/1/2019.

4. Besides, all the above, in today’s application quite valiantly put forward by Ms. Mwemeke, there is a dearth of evidence of existence of valid grounds as to why documents, which have not been expressed to be expert reports, were not filed together with the defence as required on 12/2/2019.

5. Furthermore not only has the plaintiff closed his case but one of the defendants too.  It can only be imagined with not so little trepidation the extent of retrogression the granting of Ms. Mwemeke’s request would bring in this litigation.  No person may predict with any measure of certainty which of the parties may be prejudiced by such an order sufficiently to galvanize them into applying for the reopening of their respective cases, and after that, how long it would take to conclude this old matter.

6. In this matter, all the parties can see the possible end of the process as at the present.  It is not a proper thing for the 2nd defendant to fail to even allow the other parties to have sight of his secret weapons that may, if blindly allowed, wreak mass destruction on their cases. I must say that the greatest failure of the 2nd defendant is in failing to disclose what he wishes to produce as evidence in future in the matter, and the other parties, are held at ransom, unable to consent, waiting with bated breath for this court’s decision.

7. I find this application to be quite another ruse from the 2nd defendant’s repertoire calculated at halting the onward march of this litigation to its denouement.  The maxim interest republicae ut sit litium finis must find its rightful place of implementation in this litigation and that will be effected by a denial of Ms. Mwemeke’s application.

8. I therefore deny the said application and I order the hearing to proceed without any further documents being filed by any party.

Dated, signed and delivered at Kitale on this 25th day of November, 2019.

MWANGI NJOROGE

JUDGE

25/11/2019

Coram:

Before - Hon. Mwangi Njoroge, Judge

Court Assistant - Picoty

Mr. Mokua for plaintiff

N/A for the 1st defendant

Ms. Mwemeke for 2nd defendant

Mr. Khakula for 3rd defendant

Mr. Bisonga for 4th 5th and 6th defendants

COURT

Ruling read in open court.

MWANGI NJOROGE

JUDGE

25/11/2019