Opondo v Mohamed & 3 others [2023] KEELC 22335 (KLR)

Opondo v Mohamed & 3 others (Environment & Land Case E188 of 2022) [2023] KEELC 22335 (KLR) (20 December 2023) (Ruling)

Neutral citation: [2023] KEELC 22335 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case E188 of 2022

LN Mbugua, J

December 20, 2023

Between

Crispine Omondi Opondo

Plaintiff

and

Mohamed Bille Mohamed

1st Defendant

Anne Wavinya Mbithe

2nd Defendant

Kiambu Dandora Farmers Company Ltd

3rd Defendant

Reagan Mwngangi Masue

4th Defendant

Ruling

1. This court has conducted Pre Trial directions countless times, sometimes virtually, sometimes in open court as is evident from the proceedings of 28. 9.2022, 8. 12. 2022, 28. 2.2023, 17. 4.2023 (when matter was scheduled for hearing), 5. 6.2023 (when the court gave a final date for Pre Trial on 6. 7.2023), 6. 7.2023, 17. 7.2023, 31. 10. 2023 and 14. 12. 2023. The common thread running all through relates to the issue of none compliance. For one reason or another, parties have taken the Pre Trial process casually thus delaying the speedy trial of the case which even had a hearing date on 17. 4.2023.

2. On 14. 12. 2023, an issue was raised by advocates for the defendants that the trial bundle dubbed “Plaintiffs Amended list of witnesses dated 3. 7.2023” which the plaintiff’s advocate identified as their trial bundle was not served on them and that the same was not filed. This court is therefore required to give directions on the status of the said bundle and any other pleading, documents and witness statements which are irregularly filed.

3. I have gone through the digital portal and indeed the trial bundle of the plaintiff dated 3. 7.2023 is not filed in the digital portal (CTS).

4. I will however indulge the plaintiff so as to rely on the said trial bundle under strict conditions. The court has arrived at this decision because the issue of procedural infraction has not been confined upon the plaintiff alone. A perusal of the file in the digital portal paints a grim picture in regard to the modus operadi of filing pleadings witness statements and documentary evidence.

5. In the case of 1st defendant, they were initially relying on a bundle dated 7. 7.2022 of which on 6. 7.2023, they stated that they would not change their Trial Bundle. On 17. 7.2023, counsel for 1st defendant reiterated that they would rely on their bundle of 7. 7.2022 plus pleadings filed in an earlier bundle whose date the counsel could not trace! Finally, the 1st defendant filed their “alleged Trial Bundle” on 25. 10. 2023 and the actual one on 27. 10. 2023 way after the timelines set by the court on 17. 7.2023, where the court had given the filing of defence documents by 17. 9.2023.

6. For the 2nd defendant the court cannot trace a Trial Bundle in the portal, though a defence statement was filed on 4. 4.2023.

7. The Trial Bundle of 4th defendant was filed on 5. 7.2023 but the statement of defence cannot be traced.

8. The mess is untenable. In the case of Moschion v. Mwangi (Environment and Land Case 350 of 2018) [2023] KEELC 17144 (KLR) (27 April 2023) (Ruling) the court struck out 8 suits for none compliance with Pre Trial directions while stating that the right to be heard is sacrosanct, but a party is only entitled to a reasonable opportunity to be heard.

9. The parties herein will get away with all and sundrytransgressions. However, they are now sufficiently warned of the repercussions of none compliance with court’s directions.

10. I proceed to give directions as follows:1. The plaintiff is to file and serve their Trial Bundle dated 3. 7.2023 along with the affidavit of service by 14. 1.2024 failure to which, this suit shall stand as dismissed.2. The defendants shall file/serve any further witness statement and or documentary evidence and the Affidavit of service (in the event that there is a need to add such documents) by 28. 1.2024. Documents filed/served outside the given timelines by defendants shall stand as expunged.3. The court will proceed to give a hearing date.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Kibathi for PlaintiffM/s Awandu holding brief for Were for 3rd DefendantOduor holding brief for Mohamud for 1st Defendant