Wanderi v Nganga (Environment and Land Appeal E043 of 2024) [2025] KEELC 5005 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that a witness cannot be barred from testifying just because their statement was filed late, where both sides already knew about the evidence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a witness should be denied an opportunity to testify for failure to file witness statements and other documents
- 2.Whether failure to file witness statements and other documents in a suit is so fatal as to deny the party the right to testify orally
- 3.Whether the trial court correctly applied the rules of procedure and evidence in barring the chief's testimony
Key legal issues
#Whether a witness may be barred from testifying for failure to file a witness statement
The trial court erred in denying the Appellant's witness an opportunity to testify; where the witness and documents were disclosed and served, production would not be an ambush and leave may be granted under the overriding objective.
Rules of procedure exist to guide proceedings and prevent trial by ambush, not to defeat substantive justice. The witness was listed, the minutes were in the served bundle of documents, and defence counsel had agreed to production without tendering evidence. The court may grant leave to file witness statements out of time under Order 3 Rule 2 and Order 50 Rule 6 of the Civil Procedure Rules, ensuring the fair hearing guaranteed by Article 50(1).
Legal principles established
#- A party should not be denied an opportunity to testify for failure to file a witness statement where the witness and documents were disclosed and their production would not amount to trial by ambush; the court may grant leave to file statements out of time in the interest of justice.
Court orders
#- 1.Appeal allowed
- 2.Appellant to file and serve a witness statement within 14 days for hearing of the case
- 3.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Nakuru
- CMELC No. E119 of 2023
- Jurisdiction invoked
- First appellate jurisdiction over the magistrates' court under the Environment and Land Court Act
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I have considered the grounds of the Appeal, the submissions by counsel and find that the Appeal has merit. Appellant to file and serve a witness statement within 14 days for hearing of the case. Each party to bear their own cost.
These were documents that had been served on the Defendant hence it was not an ambush.
Rules of Procedure are to guide the court and organize proceedings in an orderly manner.
Issues in the judgment
#The names of the parties are not stated in the judgment; the parties are referred to only as Appellant and Respondent.
The judgment does not expressly state whether the ruling appealed against was set aside, nor does it articulate formal disposal of the ruling beyond ordering filing of a witness statement.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanderi v Nganga (Environment and Land Appeal E043 of 2024) [2025] KEELC 5005 (KLR)", Case Analysis (2025). Nakuru- ELCLA/E043/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5005/eng@2025-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.