Case ID:162274

Christina Barabara Malakwen v Benjamin Mwale Engairo & 3 others [2020] eKLR

Case Metadata

Case Number:

Environment and Land Case 102 of 2018

Parties:

Christina Barabara Malakwen v Benjamin Mwale Engairo , Titus Kipyab, Land Adjudication & Settlement Officer Trans-Nzoia & Ibrahim Wafula

Date Delivered:

23 Jul 2020

Case Class:

Civil

Court:

Environment and Land Court at Kitale

Case Action:

Ruling

Judge(s):

Francis Mwangi Njoroge

Citation:

Christina Barabara Malakwen v Benjamin Mwale Engairo & 3 others [2020] eKLR

Court Division:

Environment and Land

County:

Trans Nzoia

Case Outcome:

Application ordered

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KITALE

CASE NO. 102 OF 2018

CHRISTINA BARABARA MALAKWEN (Suing as legal representative of the Estate of the late

RAPHAEL KIPTOO BIEBEI)..................................................................................PLAINTIFF

VERSUS

BENJAMIN MWALE ENGAIRO.........................................................................1

ST

DEFENDANT

TITUS KIPYAB.....................................................................................................2

ND

DEFENDANT

LAND ADJUDICATION & SETTLEMENT OFFICER TRANS-NZOIA.....3

RD

DEFENDANT

IBRAHIM WAFULA............................................................................................4

TH

DEFENDANT

RULING

1. By a Notice of Motion dated

17/3/2020

brought under

Section 3, 3A and 63(e) of the Civil Procedure Act

,

Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules 2010,

the applicant who is the plaintiff seeks the following orders:

(1) …spent

(2) That this honourable court do grant the applicant/plaintiff leave to file a witness statement for one PHILIP CHEPKWONY and further list of witnesses and documents to be relied on during the hearing out of time.

(3) That the list of documents and list of witnesses and the witness statement of PHILIP CHEPKWONY filed herewith be deemed as properly filed.

(4) That the costs be in the cause.

2. The application is supported by the affidavit of the plaintiff sworn on

17/3/2020.

That affidavit has a number of annextures attached to it.

3. The application is based on the grounds that although the name of

Philip Chepkwony

was included in the list of witnesses, his statement was not filed; that there is need to include some further documents and also call the Land Registrar, Trans-Nzoia as a witness in this case; that the respondents shall not be prejudiced if the application is allowed and that the further documents and the calling of the formal witness will assist the court in the determination of the dispute.

4. The supporting affidavit reiterates the same matters set out in the grounds above. An affidavit of service was filed showing that the application was served. However, the respondents did not file any responses despite being served. The plaintiff filed her submissions on

30/6/2020

. I have considered the application and the filed submissions.

5. The issues that arise in the instant application or whether the plaintiff should be granted leave to file a witness statement Philip Chepkwony and a further a list of witnesses and documents to be relied on during the hearing at this juncture and whether the list of documents and the witness statement filed in the record with the application be deemed as properly filed.

6. I have considered the application before me. It is not opposed. It is explained in the supporting affidavit that the current advocate took over the matter after it was transferred to this station from Eldoret.

7. It is stated that in the course of preparing for the trial it became apparent that the statement of Philip Chepkwony a son to the plaintiff had not been recorded and filed though his name had been included in the list of plaintiff’s witnesses.

8. The deponent further states that it has become necessary to issue summons the County Land Registrar to produce the register in respect of the suit land.

9. Finally, the deponent states that it is necessary to include further documents for production at the trial and that the respondents would not be prejudiced should the instant application be allowed.

10. As stated before the application is not opposed. This is a suit that was filed in the middle of the year

2018

. Hearing has not yet commenced and I am of the opinion no prejudice would be occasioned to the respondents if the application was granted.

11. I therefore grant the application dated

17

th

March 2020

as prayed

Prayer No. 2 and 3

. The costs of the application shall be in the cause. This case shall be mentioned on the

29

th

July 2020

via teleconference for pre-trials.

It is so ordered.

Dated, signed

and

delivered

at

Kitale

via electronic mail

on this

23

rd

day of

July,

2020.

MWANGI NJOROGE

JUDGE, ELC, KITALE.