Musyoki v Mulei (Environment and Land Case 20 of 2020) [2025] KEMC 260 (KLR)
The bottom line
#A Makindu court threw out a forensic report filed nearly two years late but let the defendant file his witness statement—late filings cost money and 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 the court should admit the Forensic Documents Examiner’s report and allow the defendant to rely on it
- 2.Whether the defendant should be allowed to file and serve his witness statement out of time
Key legal issues
#Whether the Forensic Documents Examiner’s report should be deemed duly filed and served
Declined; the report was expunged from the record.
The court found the report filed on CTS on 2/2/2025, after the pre-trial directions of 24/6/2024, and never served. The issue was raised only on 27/5/2025 after the plaintiff closed his case. No explanation was offered for the almost two-year delay, and the report allegedly dated 4/10/2023 does not exist on record, making it impossible to deem it filed. Allowing it would enable trial by ambush.
Whether the defendant should be allowed to file and serve his witness statement out of time
Allowed; the defendant to file and serve within seven days, with the plaintiff at liberty to recall witnesses.
Although no good reason was given for the delay and the defendant was guilty of laches, the court exercised its discretion to allow late filing because it did not wish to lock the defendant out of giving his side of the story. Denying a party a hearing should be the last resort, and the plaintiff may recall witnesses to cure any prejudice.
Whether mistake or change of counsel excuses non-compliance with filing timelines
No; the number of counsel engaged is irrelevant and negligence of lawyers may properly fall on their own heads.
The defendant attributed the omission to three prior firms failing to file a typed witness statement. Relying on Ketteman v Hansel Properties and Tana and Athi Rivers Development Authority, the court held that the mistake-of-counsel maxim is not automatic and counsel owes duties to the court and the other side; parties must be vigilant and diligent regardless of how many advocates they engage.
Legal principles established
#- Extension of time is an equitable indulgence, not a right; a party in default must give a full, honest and acceptable explanation for the delay
- Article 159(2)(d) of the Constitution is not a panacea for procedural defaults and cannot be invoked by an indolent party
- The court's discretion to extend time is not intended to fill gaps in evidence or assist a party conducting trial by ambush
Court orders
#- 1.The application to deem the Forensic Documents Examiner’s report as duly filed and served is declined; the report dated 16/10/2023 and filed on CTS on 2/2/2025 without leave of court is expunged from the record
- 2.The defendant to file and serve his witness statement upon the plaintiff within seven (7) days
- 3.Upon service of the defence witness statement, the plaintiff shall be at liberty to recall any witness including the plaintiff himself, if need be
- 4.The defendant shall pay to the plaintiff costs of Ksh. 2,100/= for causing the adjournment on 22/9/2025, court adjournment fee of Ksh. 500/= as well as costs for the delay, assessed at Ksh. 10,000/=, payable before the next hearing date
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent powers under sections 1A, 1B and 3A of the Civil Procedure Act and Order 50 rule 6 of the Civil Procedure Rules
Relief refused
#Deeming the Forensic Documents Examiner’s report as duly filed and served
Inordinate and unexplained delay of almost two years; no reason given for non-service; the report allegedly dated 4/10/2023 is not on record, and it was filed after pre-trial directions and raised only after the plaintiff closed his case
Punitive costs of Ksh. 30,000/= sought by the plaintiff
The court assessed costs at Ksh. 10,000/= instead
Costs
The defendant shall pay the plaintiff costs of Ksh. 2,100/= for causing the adjournment on 22/9/2025, court adjournment fee of Ksh. 500/=, and costs for the delay assessed at Ksh. 10,000/=, all payable before the next hearing date
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.
The application to deem the Forensic Documents Examiner’s report as duly filed and served is declined. In efiect, the report dated 16/10/2023 and filed on CTS on 2/2/2025 without leave of court is hereby expunged from the record
The defendant to file and serve his witness statement upon the plaintifi within seven (7) days from today
The defendant shall pay to the plaintifi costs of Ksh. 2,100/= for causing the adjournment on 22/9/2025, court adjournment fee of Ksh. 500/= as well as costs to the plaintifi owing to the delay. The costs are hereby assessed at Ksh. 10,000/=
Article 159(2) (d) of the Constitution cannot be invoked by a party who blatantly and without reasonable excuse circumvents the rules of procedure nor a party who has been indolent and failed to exercise due diligence.
A court has a duty to ensure parties are fair to each other and not conduct trial by ambush.
Issues in the judgment
#The judgment does not state the case title or case number
Discrepancy in the date of the forensic report: counsel said the report is dated 4/10/2023 but the only report on CTS is dated 16/10/2023 and was filed on 2/2/2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musyoki v Mulei (Environment and Land Case 20 of 2020) [2025] KEMC 260 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/260/eng@2025-10-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.