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ELCAllowedNot stated in the judgment

Chepkoech alias Milcah v Chelugui & another (Environment and Land Appeal E038 of 2022) [2025] KEELC 178 (KLR)

Environment and Land Court of Kenya (station indicated only as Kapsabet)
29 January 2025
GOG M A Ongondo
295 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This interlocutory ruling by G M A Ongondo J, delivered at Kapsabet on 29 January 2025, determines an application by Mr. Korir, learned counsel for the defendants, that PW2, Marcella Jerotich Bett, be barred from testifying on the ground that her name does not appear in the plaintiff's list of witnesses and that her statement was not filed and served on the defendants' counsel as required by law. Mr. M. Orina, learned counsel for the plaintiff, responded by confirming that the statement was available but had not been served, and that the witness's name was not shown in the plaintiff's lists of witnesses dated 14/11/2022 and 25/4/2024. The court found it common ground that the witness's name was absent from the lists and her statement was never filed and served within the prescribed timelines. Relying on the principle in Ogada v Mollin (2009) KLR 620 that a party to a suit must be made aware of the existence of a matter, and grounding the entitlement on access to justice and fair hearing under Articles 48, 50(1) and 25(c) of the Constitution of Kenya 2010, the court held the application meritorious and allowed it, barring PW2 from testifying. No costs order was made. The ruling is a first-instance interlocutory decision and does not disturb any prior decision.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether PW2, Marcella Jerotich Bett, whose name was not in the plaintiff's list of witnesses and whose statement was not filed and served, should be allowed to testify
  2. 2.Whether the defendants' application in that regard is sustainable

Key legal issues

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01

Whether a witness not named in the list of witnesses and whose statement was not filed and served may be prevented from testifying

Holding

Yes; the court barred PW2 from testifying where her name was absent from the plaintiff's list of witnesses and her statement had not been filed and served on the defendants' counsel

Reasoning

It was common ground that PW2's name did not appear in the plaintiff's list of witnesses dated 14/11/2022 and 25/4/2024, and her statement was neither filed nor served within the prescribed timelines. The court held that defendants are entitled to such documents, founded on the constitutional guarantees of access to justice and fair hearing (Articles 48, 50(1) and 25(c)), applying the principle in Ogada v Mollin that a party must be made aware of the existence of a matter.

p. 1

Legal principles established

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  • A party to a suit is entitled to prior disclosure of the opposing party's witness statements and witness lists, grounded in access to justice and fair hearing under Articles 48, 50(1) and 25(c) of the Constitution

Court orders

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  1. 1.The defendants' application that PW2, Marcella Jerotich Bett, should not testify in the suit is allowed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

GO
majority

Wrote the judgment

Jurisdiction invoked
Not expressly invoked; decided in the spirit of Articles 48, 50(1) and 25(c) of the Constitution of Kenya 2010

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Notably, it is common ground that the plaintifi’s list of witnesses herein does not contain the name of PW2. Further the statement of PW2 was not filed and served on the defendants’ counsel within the prescribed timelines.
p. 1Undisputed procedural default by plaintiff's counsel
It is trite that a party to a suit must be made aware of the existence of the matter; see Ogada-vs-Mollin (2009) KLR 620.
p. 1Principle of notice to parties
Thus, the defendants’ application is meritorious. The same is allowed accordingly.
p. 2Disposition allowing the application
It is so ordered.
p. 2Final orders

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Chepkoech alias Milcah v Chelugui & another (Environment and Land Appeal E038 of 2022) [2025] KEELC 178 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/178/eng@2025-01-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.