Florence Nyaguthii Muchemi v Attorney General, Commissioner of Prisons, National Land Commission & George Waweru Mwangi [2022] KEELC 600 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT

AT THIKA

ELC NO. 478 OF 2017

FLORENCE NYAGUTHII MUCHEMI.....................................................................PLAINTIFF

VS

THE HON. ATTORNEY GENERAL............................................................1ST DEFENDANT

THE COMMISSIONER OF PRISONS.........................................................2ND DEFENDANT

THE NATIONAL LAND COMMISSION....................................................3RD DEFENDANT

GEORGE WAWERU MWANGI.....................................................................4TH DEFENDANT

RULING

1. The Plaintiff/Applicant filed the instant Notice of Motion Application dated 27th May 2021 for Orders;

i. THAT the Plaintiff be granted leave to File a Further List of Documents and Witness Statements and thereafter be recalled to the witness box to testify in respect of the Defendants’ Defence and Counter claim and Witness Statements, which were filed after the Plaintiff had given her evidence and closed her case.

ii. THAT this Honorable Court do summon the National Government Surveyor, Thika to attend the Court site visit for purposes of identifying the suit property for purposes of identifying the suit property by pointing out the beacons marking boundaries thereof, and pointing out the boundary of the 2nd Defendant’s land nearest to the suit property.

iii. THAT costs of this Application be in the cause.

2. The application is based on the grounds thereto and an undated Supporting Affidavit of Ezekiel N.K Wanjama, the Plaintiff’s Advocate filed on the 28/5/2021. He deponed that the Plaintiff testified and closed her case on 2/11/2017 long before the 1st and 2nd Defendants filed their amended defence and counterclaim on the 12/6/2018 and the 3rd Defendant filed its defence on the 6/3/2018. That the said pleadings raised issues which the Plaintiff needs to respond to. Thirdly that he had applied for the Court to conduct a site visit on the suit property to establish its boundaries when the application was allowed but the site visit was hampered by the onset of Covid 19 Pandemic hence this Application.

3. On the 4/10/2021 Mr Motari learned State Counsel informed the Court that he was not going to file any Replying affidavit to the application as requested on the 5/7/2021. However on the 2/11/2021 when the matter came for mention to confirm compliance with the filing of written submissions, Ms Mwikali Ndundu, the learned State Counsel of the 1st and 2nd Defendants indicated that they had not complied and sought more time to comply. The Court granted the Defendants 7 days within which to file their written submissions. On the 15/11/2021, Mr Motari informed the Court that he had filed his written submissions. I have carefully perused the file and I find none on record.

4. The Application is opposed by the 3rd Defendant.

5. The 3rd Defendant’s Learned Counsel Masinde Cecilia swore the Replying Affidavit dated 22/6/2021. She confirmed that parties’ had indeed closed their respective cases and that the Plaintiff had ample time since 31/5/2018 to file the instant application. She averred that the 1st and 2nd Defendant’s evidence in Court was based on the amended pleadings and any arising issue(s) can well be addressed in the submissions. That in the event the Court is inclined to accede to the Plaintiff’s prayers, it would then be necessary to have the Land Registrar attend the site visit as well pursuant to provisions Sections 18 and 19 of the Land Registration Act.

6. The application was canvassed by way of written submissions.

7. On behalf of the Plaintiff, the firm of Wanjama & Company Advocates filed submissions dated 28/10/2021. Reiterating the contents of the Application, it was submitted that the only lawful person to identify the impugned boundaries is the National Government Surveyor, Thika. That recalling the Plaintiff to testify will not occasion any prejudice on the Defendants. Reliance was placed on Section 1A Civil Procedure Act and Order 18 Rules 10 & 11 Civil Procedure Rules.

8. Conversely, the 3rd Defendant’s Counsel filed submissions dated 14/11/2021. She submitted that the provisions of Orders 3, 7 & 11 Civil Procedure Rules require parties to furnish all their evidence before hearing commences. That the Defendants having been granted leave to file amend their pleadings, the Plaintiff as well had ample time to file any additional documents if need be. That the suit is now at an advanced stage and the Plaintiff’s request to file further documents and recall the Plaintiff amounts to an ambush and an alteration of the Plaintiff’s case, to support that proposition, the decision of Johana Kipkemei Too v Hellen Tum (E& L No. 975 of 2012) [2014] eKLR was cited.

9. The main issue for determination is whether the application is merited. The basis of the Plaintiff’s application is that the Plaintiff testified and closed her case on the 2/11/2017. That 1st and 2nd Defendants were allowed to file their defence and counterclaim on the 12/6/2018 and the 3rd Defendant on the 6/3/2019 long after the Plaintiff had testified and closed her case. That there are issues arising from these pleadings which the Plaintiff wishes to respond hence the need to file a further list of documents, a further Plaintiffs witness statement and for the Plaintiff to be recalled to so testify.

10. The 3rd Defendant has opposed the application on the ground that the Plaintiff ought to have made the application before the parties closed their cases. That the Plaintiff cross examined their witness at the hearing and further faulted the Plaintiff for waiting until all the pleadings are closed, evidence taken and all parties have cross examined the witnesses.

11. The overarching law  with respect to the right to be heard is set out in Article 50 of the Constitution is 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. Further this Court is mandated by Article 159 (2) (d) to administer justice without undue regard to procedural technicalities. In various cases decided by Courts the Court had has risen to the call of delivering substantive justice to the parties.

12. To achieve fairness in the hearing of suits, the Civil Procedure Rules has in-build safeguards to remove ambush on any party and therefore bring about fairness.  Order 3 rule 2 and Order 7 rule 5 of the Civil Procedure Rules obligates the parties to file their pleadings, list of document’s, and copies of documents that they wish to rely in prosecuting and defending their case. This does not prevent the parties to seek leave of the Court to file additional documents and or file documents out of Court where the case applies.; Such leave if granted by the Court allows the party 15 days before pre-trial conference to so file and serve. Each case would be determined in accordance with the circumstances obtaining, the goal being to serve justice upon the parties.

13. The question that now arises is whether it will be in the interests of justice, given the circumstances of this case, to allow the application by the Applicant to file additional evidence and documents. To answer this question the Court will analyses the proceedings on record.

14. This suit was filed on the 30/5/2016 and the matter was certified ready for hearing on the 31/7/2017. Despite service to the Defendants having been made, the Defendants were absent at the hearing and the Court being satisfied on the said service directed the hearing to proceed. The Plaintiff testified on the 2/11/2017 exparte and closed her case.

15. Later the 1st Defendant vide an application dated the 11/12/2017 sought leave to stay the proceedings, set aside the proceedings and allow the Defendants to be heard on their defences and counterclaim.  The Court upon hearing the parties granted the application on the 13/4/2018 in the following terms;

“Having now carefully considered the available evidence and the provisions of Sections 1A, 1B and 3A of the Civil Procedure Act and also taking into account that the Court has discretion to make such orders that are necessary for ensuring that end of justice is met and that there is no abuse of the Court process, the Court finds that the Defendants/Applicants application is merited and is consequently allowed on the following terms:-

a) The Court will stay any further mention for confirmation of filing of submissions and setting of a Judgment date.

b) The Court will set aside the Order of close of the case and will allow the Defendants to cross-examine the Plaintiffs on her evidence already adduced in Court.

c) Consequently, the Court declines to order that the matter do start denovo but allows the recall of the Plaintiff for examination by the defence.

d) The Defendants are hereby allowed to tender their evidence in support of their Defence and Counter-claim.

e) The Defendants are granted leave of 15 days from the date hereof to file and serve their witness statements and list of documents to the Plaintiff.

f) The Defendants to pay a throw away cost of Kshs. 20,000/- to the Plaintiff herein.”

16. On the 31/5/2018 the Court granted the Defendants application dated the 22/5/2018 to enjoin the 3rd and 4th Defendants. On even date the 1st Defendant was granted leave to file an amended defence and counterclaim with corresponding leave to the Plaintiff to file an amended plaint and the amended reply to the defence and counterclaim.

17. On the 12/3/2019 the Plaintiff was again granted leave to file any further list of documents in response to the 3rd Defendants pleadings. On even date the Plaintiffs’ counsel was allowed to file an additional document to wit; Kenya Gazette Notice No 6864 of 17/7/2017.

18. On the 19/6/2017 the Plaintiff was allowed to reopen her case and testify. The Plaintiff was also afforded the opportunity to cross examine the Defendants witnesses. All the parties have closed their cases.

19. It is therefore clear that though the Plaintiff closed her case, the same was reopened and the parties, including the Plaintiff were granted leave to file their pleadings and the case was heard and concluded.

20. The Plaintiff has not disclosed to the Court the issues that she wishes to address and or whether there is discovery of new evidence that the Plaintiff did not have at the time of the hearing or that it would be in the interest of justice to grant the application. There was no valid basis laid by the Plaintiff to support the adduction of new evidence and documents by the Plaintiff.

21. For the above reasons the prayer is hereby denied.

22. With respect to prayer No. 2 , ordering the site visit, the Court is satisfied that the prayer is relevant to the issues in controversy which surround the determination of the boundaries of the suit land and whether there is encroachment or not. The Court notes that this prayer had been allowed but implementation was hampered by COVID pandemic as averred by the Plaintiff. The Court has no reason to doubt given that the COVID Pandemic had limited movement in the country for the last two years.

23. Final orders

a. Prayer 1 is denied.

b. Prayer 2 is allowed. The Land Registrar, Thika is ordered to accompany the Government Surveyor on site along with the Hon. Deputy Registrar of the Court and the parties and or their representatives on a day to be agreed by the parties before the Honourable Deputy Registrar.

c. Costs shall be in the cause.

24. Orders accordingly.

DELIVERED, DATED AND SIGNED AT THIKA THIS 25TH DAY OF MARCH 2022 VIA MICROSOFT TEAMS PLATFORM.

J. G. KEMEI

JUDGE

Delivered online in the presence of;

Plaintiff – Mrs. Githaiga holding brief for Wanjama

Defendant 1 & 2 – Motari

Defendant 3 – Mrs. Masinde

Ms. Phyllis – Court Assistant