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Case Brief · caselaw.co.ke
ELCAllowedELCOS No. E008 of 2024 (O.S) - Fast Track

Joseph Kingoo Mailu & Maurice I. Makatiani v Jane Huhu, Catherine Huhu & Grace Wanjiru Huhu

Environment and Land Court
24 September 2026
1,892 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed a party to add a new witness before trial, confirming courts prioritise full evidence over strict filing deadlines.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos on the Plaintiffs' Notice of Motion dated 24th June 2026 seeking leave to admit in evidence the witness statement of Stanley Kingara, a former advocate of the Plaintiffs, and to have him testify at the hearing of an originating summons concerning Mavoko Town Block 2/263 and 2/275. Mr Kingara ceased acting for the Plaintiffs after the Defendants filed an application on 13th November 2025 seeking his disqualification, in which they themselves described him as a potential witness. The Defendants were served with the motion but filed no response, leaving it unopposed. The court first clarified the legal basis: Order 18 rule 9 of the Civil Procedure Rules, cited in the motion, does not govern additional witness statements for trial; the correct provision is Order 3 Rule 2, which allows a statement to be furnished later with leave, read with section 95 of the Civil Procedure Act. Applying the principles in Marcus Kibuku Nimrod and Okwara v Ouma, the court held that the proposed evidence concerns the pleaded 1995 sale agreement and related transactions within the witness's personal knowledge, the hearing had not commenced, and no prejudice was demonstrated. The motion was allowed: the Plaintiffs to file and serve the Kingara statement within fourteen days, the Defendants at liberty to file supplementary statements and documents within fourteen days of service, costs in the cause, and the suit transferred to the Environment and Land Court at Mavoko for hearing.

Questions the Court framed

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

  1. 1.Whether the Plaintiffs should be granted leave to admit and use the witness statement of Stanley Kingara dated 21st April 2026 and to call him as a witness at the hearing

Key legal issues

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01

Correct legal basis for admitting an additional witness statement

Holding

Order 18 rule 9 does not govern filing of additional witness statements for trial; the correct provision is Order 3 Rule 2, which permits late furnishing of a statement with leave of court, read with section 95 of the Civil Procedure Act.

Reasoning

The court noted the motion cited Order 18 rule 9, which deals with evidence taken where a witness is about to leave the jurisdiction or where immediate taking of evidence is justified. That provision does not govern filing of additional witness statements for trial. Order 3 Rule 2 requires plaintiffs to file witness lists and statements with the plaint but permits late furnishing with leave; section 95 empowers the court to enlarge time.

p. 5
02

Whether leave should be granted to call a former advocate as a witness

Holding

Leave granted. The evidence concerns the pleaded transaction and matters within the witness's personal knowledge; the hearing had not commenced; the defendants, though served, did not oppose and showed no prejudice.

Reasoning

The witness was the plaintiffs' former advocate who ceased acting after the defendants themselves sought his disqualification, describing him as a potential witness. His statement concerns the 1995 sale agreement and related transactions already in dispute. The hearing had not commenced, so defendants could prepare to test the evidence, and no prejudice was demonstrated.

p. 12

Legal principles established

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  • A trial court is not barred from allowing a party, with leave, to introduce witness statements and documents not previously filed and served, the primary duty of the court being to do justice by allowing all relevant evidence.

Court orders

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  1. 1.The Plaintiffs shall file and serve the witness statement of Mr. Stanley Kingara dated 21st April 2026 within fourteen (14) days of the date of this ruling
  2. 2.The Defendants may, if need be, file and serve any additional witness statements and supplementary list and bundle of documents within fourteen (14) days of service by the Plaintiffs
  3. 3.The costs of the Application shall be in the cause
  4. 4.The suit is hereby transferred to the Environment and Land Court at Mavoko for hearing and determination

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 3 Rule 2 of the Civil Procedure Rules

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.

Accordingly, the Notice of Motion dated 24th June 2026 is allowed and I make the following orders:
p. 12disposition
The suit is hereby transferred to the Environment and Land Court at Mavoko for hearing and determination.
p. 13transfer of suit
The Court must, however, balance that requirement against the need to do substantive justice between the parties by allowing relevant evidence to be placed before it.
p. 7balancing disclosure rules and substantive justice
Ideally, where the trial has not commenced or it is at its early stages, no prejudice will be caused to the other party.
p. 9late filing of statements - prejudice test

Issues in the judgment

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minor

Application dated 24th June 2026 in a 2024 suit, ruling dated 24th September 2026 - dates appear inconsistent.

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, "Joseph Kingoo Mailu & Maurice I. Makatiani v Jane Huhu, Catherine Huhu & Grace Wanjiru Huhu", Case Analysis (2026). ELCOS No. E008 of 2024 (O.S) - Fast Track. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5808/eng@2026-09-24

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