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

(The Administrators of the Estate of PATRICK PETERSON HIUHU)………………………………………………….………… DEFENDANTS RULING Introduction 1. Before the Court is the Plaintiffs' Notice of Motion dated 24 th June 2026 brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 18 Rule 9 of the Civil Procedure Rules, sections 70 and 76 of the Evidence Act, and all other enabling provisions of the law. 2. The Application seeks the following orders: a) THAT this application be certified urgent and the same be heard before the hearing of this suit can commence. b) THAT the Plaintiffs/Applicants be granted leave to admit in evidence the witness statement of Stanley Kingara dated 21st April 2026 and the ELCOS. NO. E008/2024-RULING 2

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said Stanley Kingara do testify and produce the witness statement. c) THAT the costs of this application be in the cause. 3. The application is supported by the affidavit of Mark Waweru, Advocate, of I.M. Waweru and Associates Advocates, who has the conduct of the matter on behalf of the Plaintiffs. 4. The material facts are not in dispute. Mr Kingara previously acted as an advocate for the Plaintiffs in this matter. On 13 th November 2025, the Defendants filed an application seeking his disqualification from acting for the Plaintiffs. One of the grounds relied upon in that application was that Mr Kingara was a potential witness in the matter. Following that application, Mr Kingara ceased acting for the Plaintiffs, who thereafter instructed their present advocates. 5. The Plaintiffs now seek to call Mr Kingara as a witness in relation to matters arising from the transaction which is the ELCOS. NO. E008/2024-RULING 3

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subject of the suit. In particular, the proposed evidence concerns, among other matters, the preparation of the sale agreement dated 29th August 1995 and the transactions arising from or connected with that agreement. 6. The Plaintiffs contend that the proposed evidence is material to the determination of the dispute and arises from matters within Mr Kingara’s personal knowledge. They further contend that the hearing of the suit has not commenced and that the Defendants will have an opportunity to test the evidence through cross-examination. 7. The Plaintiffs also rely on the Defendants’ application dated 13th November 2025. In that application, the Defendants expressly described Mr Kingara as “a potential witness in this matter either for the Plaintiffs or the Defendants.” 8. The Defendants were served with the present application but did not file a replying affidavit, grounds of opposition or written submissions. The application is therefore unopposed. ELCOS. NO. E008/2024-RULING 4

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Analysis and Determination 9. Having considered the application and the material placed before the Court, the sole issue that arises for determination is whether the Plaintiffs should be granted leave to admit and use the witness statement of Stanley Kingara dated 21 st April 2026 and to call him as a witness at the hearing. 10. Before turning to the substance, it is necessary to address the legal basis upon which the application has been brought. The Notice of Motion cites Order 18 rule 9 of the Civil Procedure Rules. That provision deals with the taking of evidence where a witness is about to leave the jurisdiction or where sufficient cause is shown for the evidence to be taken immediately. It does not govern the filing of an additional witness statement for purposes of trial. 11. The relevant provision is Order 3 Rule 2 of the Civil Procedure Rules. It requires a plaintiff to file, together with the plaint, a list of witnesses and signed witness statements. The rule, however, permits a statement to be furnished later ELCOS. NO. E008/2024-RULING 5

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with leave of the Court. Order 7 rule 5 contains the corresponding requirement in relation to a defendant. 12. Order 3 Rule 2 Provides: “Documents to accompany suit [Order 3, rule 2] All suits filed under rule 1(1) including suits against the government, except small claims, shall be accompanied by— (a) the affidavit referred to under Order 4 rule1(2); (b)a list of witnesses to be called at the trial; (c) written statements signed by the witnesses excluding expert witnesses; and (d) copies of documents to be relied on at the trial including a demand letter before action: Provided that statement under sub rule (c) may with leave of court be furnished at least fifteen days prior to the trial conference under Order 11.” ELCOS. NO. E008/2024-RULING 6

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13. Section 95 of the Civil Procedure Act gives the Court power to enlarge a period fixed or granted by the Court for the doing of an act prescribed or allowed by the Act. Sections 1A and 1B set out the overriding objective of the civil process and the duty of the Court in furthering that objective. 14. The requirement for prior disclosure of witnesses is intended to ensure that parties know, before the hearing, the evidence upon which the opposing party proposes to rely. It is an important part of the orderly conduct of a trial. The Court must, however, consider whether the circumstances of the case justify allowing evidence which was not disclosed at the time prescribed by the Rules. 15. The requirement for prior disclosure of witnesses serves to ensure an orderly trial and to give each party notice of the evidence to be adduced. The Court must, however, balance that requirement against the need to do substantive justice ELCOS. NO. E008/2024-RULING 7

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between the parties by allowing relevant evidence to be placed before it. 16. This principle was articulated in Marcus Kibuku Nimrod & Another v Nessy Kuthii Justus 2017 eKLR, where the Court observed as follows: “It is instructive to note that neither Order 3 nor Order 7 of the Civil Procedure Rules prohibits the trial Court, upon application, from accepting late filing of statements or documents sought to be relied upon. In my view, and in keeping with Article 50 of the Constitution which provides for a fair hearing of any dispute, a trial Court is not barred from allowing a party, with leave, to introduce new statements and documents that were not previously filed and served as mandated by the provisions of Order 3 and Order 7 of the Civil Procedure Rules because the primary duty of the Court is to do justice to the parties by allowing them to present all the relevant evidence to support their respective claims. Each case will however be ELCOS. NO. E008/2024-RULING 8

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decided on its own peculiar circumstances and among the issues that the Court will take into account before granting such leave may include the reason why the statements and documents were not filed at the right time, the stage of the proceedings and the prejudice that may be caused to the other party. Ideally, where the trial has not commenced or it is at its early stages, no prejudice will be caused to the other party.” 17. In Okwara v Ouma [2024] KEELC 13392, the Court stated: "The court should always strive towards giving the parties an opportunity to present before it all available and relevant documents and other evidence so that justice is seen to have been served. That is the primary duty of any court or Tribunal called upon to determine disputes between parties. Therefore, unless there is evidence of fraud or any intention to overreach or steal a march over the other party, the cause of justice will best be served by allowing all the parties to play their ELCOS. NO. E008/2024-RULING 9

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cards by placing before the court or Tribunal all available evidence." 18. The question circumstances in the disclosed present case is whether the by Plaintiffs warrant the the exercise of that discretion. 19. In the present case, the circumstances in which the Plaintiffs seek to call Mr. Stanley Kingara are material. He was previously on record as their advocate in this matter. On 13 th November 2025, the Defendants themselves filed an application seeking his disqualification from acting for the Plaintiffs and expressly identified him as a potential witness in the matter, either for the Plaintiffs or the Defendants. Mr. Kingara thereafter ceased acting for the Plaintiffs and the present advocates came on record. 20. The witness statement now sought to be filed is dated 21 st April 2026. It concerns matters arising from the transaction that is the subject of the suit, including the preparation of the agreement for sale dated 29 th August 1995, its terms, ELCOS. NO. E008/2024-RULING 10

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the payments made pursuant to it, possession and subdivision of the property, and the circumstances leading to Machakos CMCC No. 76 of 1997. These are matters which Mr. Kingara states are within his personal knowledge arising from his involvement in the transaction and the subsequent proceedings. 21. The evidence sought to be introduced is therefore not evidence on a matter which has arisen for the first time during the hearing. It concerns the transaction pleaded in the suit and is intended to address matters already falling within the dispute between the parties. The Plaintiffs have also explained that Mr. Kingara is willing to testify and that his witness statement was prepared after he ceased acting for them. 22. The stage of the proceedings also weighs in favour of the application. The hearing has not commenced. The Defendants will therefore have an opportunity to consider ELCOS. NO. E008/2024-RULING 11

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the proposed evidence and prepare their response to it before the matter proceeds to hearing. 23. It is also noteworthy that the Defendants have not opposed the application. Although duly served, they did not file a response. The Court has therefore not been shown any prejudice that would arise from permitting the Plaintiffs to call Mr. Kingara as a witness. 24. For the foregoing reasons, I am satisfied that the Plaintiffs have made out a case for the grant of leave to admit and use the witness statement of Mr. Stanley Kingara and to call him as a witness at the hearing. 25. Accordingly, the Notice of Motion dated 24 th June 2026 is allowed and I make the following orders: a) The Plaintiffs shall file and serve the witness statement of Mr. Stanley Kingara dated 21st ELCOS. NO. E008/2024-RULING 12

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April 2026 within fourteen (14) days of the date of this ruling. b) 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. c) The costs of the Application shall be in the cause. d) The suit is hereby transferred to the Environment and Land Court at Mavoko for hearing and determination. It is so ordered. Delivered and Dated at Machakos this 24th day of September, 2026. HON. J. N. KUYIONI ELCOS. NO. E008/2024-RULING 13

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JUDGE 24.09.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Catherine Court Assistant. Mr. Ndurumo for the Defendants. Mr. Waweru for the Applicants. ELCOS. NO. E008/2024-RULING 14

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