1.The Application for determination was filed vide Notion of Motion dated October 31, 2022 and accompanied by Supporting Affidavit sworn by John Mwangi Kamau on the even date. The Defendant/Applicant sought the following orders:
2.The suit came up for hearing where the Plaintiffs’ first witness testified and an application for a site visit was sought and allowed. On September 20, 2022, the site visit was conducted and a further hearing set for January 26, 2023.
3.In submissions dated November 15, 2022, the Defendant submitted that the evidence speaks directly to the subject matter of the suit property. Relying on the cases of Raindrops Limited v County Government of Kilifi (2020) eKLR and EO vs COO (2020) eKLR it was further asserted that they could not have attained the said evidence in good time since the Defendant’s association being laymen had been limited in action. The association is currently under new leadership who discovered that the documents were in possession of the National Land Commission and moreover the documents would have a great impact on the outcome of the case.
4.The application was opposed in the Plaintiffs’ submissions dated November 21, 2022 where it was argued that the Applicant seeks to reproduce old evidence and should therefore be dismissed. Relying on the case of Francis K. Muruatetu and Another v Republic & 5 Others (2016)eKLR, it was argued that the Applicants failed to demonstrate NLC’s personal interest and what prejudice to be suffered.
5.Having perused the written submissions, court proceedings and supporting documents, it is evident that the issues for determination before this Court are:
6.Order 18, Rule 1 of the Civil Procedure Rules, dictates that the Plaintiff shall have the right to begin unless the court otherwise orders. In this instance, the Plaintiffs’ witness gave evidence and was cross-examined. I take note that the Plaintiff’s case is yet to be closed.
9.This Court must exercise its discretionary powers to ensure parties are not prejudiced in their pursuit of justice. In the instant case, seeing that the Plaintiffs are yet to close their case, they would have the opportunity to assess the relevance of the evidence and consequently cross examine the Defendant’s witness when called upon.
12.For the proposed party to be enjoined in this suit, the applicant has to show that they have a stake in the proceedings and that their presence will help determine the issues at hand. In this instance, some of the documents in the propose bundle included correspondences to the National Land Commission and consequent findings based on site visits. In my opinion, inclusion of the National Land Commission would not only prevent protracted litigation but also offer clarity on the suit property’s current position.
13.In the foregoing, the Court finds that the Application dated October 31, 2022 is merited and the same is allowed in the following terms: -a.The Defendant/Applicant is hereby granted leave to adduce new evidence strictly as contained in the bundle annexed to the affidavit of John Mwangi Kamau.b.The Defendant/Applicant is hereby granted leave to enjoin the National Land Commission as an interested party.c.The Defendant/Applicant is to file and serve the additional list of documents upon all parties within five (5) days of delivery of this ruling.d.Each party to bear own costs of the application.
It is so ordered.