Automated Summary
Key Facts
This case involves a dispute where the defendant sought to summon additional witnesses (Land Registrar Meru and Moses N. Mwithimbu) to produce original documents related to a land transfer. The court ruled against the application, finding it was an afterthought and prejudicial to the plaintiffs who had already closed their case. The matter had been pending for over a decade, with prior pre-trial directions in 2013. The court emphasized procedural compliance with Order 7 Rule 5 of the Civil Procedure Rules, which requires parties to disclose witnesses and documents in advance. The application was disallowed as it violated these rules and was deemed not in good faith.
Issues
The court addressed the procedural issue of whether the defendant's application to summon the Land Registrar and a document examiner to produce original documents was permissible under Order 7 Rule 5 of the Civil Procedure Rules. The plaintiffs argued the application was an afterthought to delay proceedings, while the defendant claimed it was necessary for justice. The court ruled the application was not made in good faith and disallowed it as prejudicial to the plaintiffs, emphasizing the importance of pre-trial disclosure.
Holdings
The court denied the defendant's application to summon the Land Registrar and Moses N. Mwithimbu as witnesses, ruling it an afterthought and an ambush on the plaintiffs.
Remedies
- The court disallowed the defendant's application to summon additional witnesses and documents, finding it an afterthought and not in good faith.
- The court made no orders regarding costs in this case.
Legal Principles
The court applied procedural rules requiring parties to disclose witnesses and documents in advance (Order 7 Rule 5 and Order 3 Rule 2 of the Civil Procedure Rules). It held that failing to disclose witnesses like the Land Registrar and a document examiner prior to trial constituted an ambush, prejudicing the plaintiffs who had already closed their case.
Cited Statute
Civil Procedure Rules (Order 7 Rule 5 and Order 3 Rule 2)
Judge Name
- C.K Yano
- L.N Mbugua
Passage Text
- I am of the view that the application herein is an afterthought tactfully calculated to fill some gaps in evidence. I am therefore of the view that the court should be extremely slow and cautious before allowing such an application which seeks to call witnesses that were not earlier disclosed as provided for by the rules. It is my take that the court should incline towards denying such application since it is an ambush and prejudicial to the other party...
- the defendant if he intended to call the Land Registrar and the document examiner as witnesses, ought to have filed these together with the defence. There is nowhere in the defendants listand further list which were filed alongside the defence which indicates that the Land Registrar or Mr. Moses N Mwithimbu would be called as witnesses.