Kibuna v City Council of Nairobi & 4 others [2022] KEELC 13412 (KLR)

Kibuna v City Council of Nairobi & 4 others (Environment and Land Case Civil Suit 529 of 2018) [2022] KEELC 13412 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEELC 13412 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment and Land Case Civil Suit 529 of 2018

LN Mbugua, J

October 6, 2022

Between

Jedidah Ngina Kibuna

Plaintiff

and

City Council of Nairobi

1st Defendant

Abraham Mwangi Njihia

2nd Defendant

Chief Land Registrar

3rd Defendant

Morris Gitonga Njue

4th Defendant

Vera Mwasi

5th Defendant

Ruling

1. I find that counsel for the plaintiff has made an application for PW1 to produce another bundle of documents filed on February 26, 2020 after the witness has given her evidence in chief and the cross examination is underway. This is a mark of disorganisation on the part of the said advocate. Having conducted a pre trial exercise on June 21, 2022, the parties ought to know by now the nature and extent of the documents, they desire to rely upon.

2. However, the right to be heard is sacrosant and the question this court poses is: is the procedural infraction sufficient to warrant the rejection of the said bundle.

3. I find that on June 21, 2022 counsel for plaintiff did identify two bundles they were to rely upon. One dated February 24, 2020 and another of February 26, 2020. So this is not a case of an ambush but a procedural lapse where the plaintiffs simply neglected or forgot to produce the said bundle during examination in chief.

4. What prejudice will be occasioned upon the rest of the parties if the bundle is produced? I find that the witness is still on the dock, and cross examination is under way. Thus the parties will still have a chance to cross examine the witness in relation to the said documents.

5. On the issue of the objection raised by counsel for the 4th & 5th defendants, I find that no basis has been laid in challenging the said document which appears to be a list. The said defendants will have a chance to cross examine the said witness on the veracity and legitimacy of the said document at the appropriate stage. The objection raised by counsel for 4th – 5th defendant is declined.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 6TH DAY OF OCTOBER, 2022 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Desmond Maina for the PlaintiffKatila for the 1st DefendantOndabu for the 2nd DefendantFatma for the 3rd DefendantNyaga for the 4th & 5th DefendantCourt assistant: Joan