https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3371

Ayora v Odhiambo & another (Land Case (Originating Summons) E012 of 2023) [2026] KEELC 3371 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELC 3371 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Land Case (Originating Summons) E012 of 2023 CG Mbogo, J June 4, 2026 Between Alfred Juma Ayora Plaintiff and Teresia Adhiambo Odhiambo 1st Defendant Chief Land Registrar 2nd Defendant Ruling 1.This matter came up in Court on the 21st of April, 2026, when the Plaintiff’s Counsel raised objection that all the affidavits sworn by one Hussein Hassan, also known as Hussein Gilo Sura were struck out on 30th January, 2024 by Justice Wabwoto. In light of that ruling, then the learned counsel raises objection that the said witness cannot be allowed to testify and should be barred from ever testifying in this matter. 2.The court is now called upon to determine this objection raised by learned counsel Mr. Ndegwa. Counsel argues that since the ruling has neither been appealed nor set aside, the witness should not be permitted to testify in these proceedings. 3.The objection is opposed by counsel for the defendants. It is submitted that the ruling of 30th January, 2024 was confined to an interlocutory application then before the court and did not amount to a permanent disqualification of Hussein Hassan as a witness in the main suit. It is further submitted that the witness was disclosed in the trial bundles served upon all parties long before commencement of the hearing and that any challenge to his participation ought to have been raised earlier. 4.I have considered the rival submissions and the record. 5.Sections 4 and 5 of the Oaths and Statutory Declarations Act provides that:-“(4)(1)A commissioner for oaths may, by virtue of his commission, in any part of Kenya, administer any oath or take any affidavit for the purpose of any court or matter in Kenya, including matters ecclesiastical and matters relating to the registration of any instrument, whether under an Act or otherwise, and take any bail or recognizance in or for the purpose of any civil proceeding in the high court or any subordinate court.” 6.In the present case, when the said Mr. Hussein, the deponent of the struck-out affidavit was cross-examined on the 18th of December, 2023 he told the court that he never understood the contents of the said affidavit and did not know why he was brought to the office of the counsel. Further, that the advocate never informed him of its contents. 7.In a suit that is instituted vide an originating summons, the affidavits filed can be relied on as pleadings, and act as witness statements, without the need for filing additional witness statements and bundle of documents. Order 37 rule 19 of the Civil Procedure Rules provides that:-“Where, on an originating summons under this Order, it appears to the court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause had been begun by filing a plaint, it may order the proceedings to continue as if the cause had been so begun and may, in particular, order that any affidavits filed shall stand as pleadings, with or without liberty to any of the parties to add to, or to apply for particulars of, those affidavits.”However, in this case, the said affidavit that was expunged was in response to an interlocutory application and not the substantive suit. 8.According to the orders of the Court issued by Hon. E.K Wabwoto, J on the 17th of April 2023, and further orders on the 13th of June 2024, the suit was directed to be heard by way of viva voce evidence. The defence case filed a separate witness statement by Mr. Hussein to be relied on for the hearing of the main suit. Nothing bars the defendant from relying on the said witness statement which was not expunged from the record, and no such orders to permanently bar the said witness were issued by this Court. 9.Learned counsel Allan Kamau for the 2nd defendant/respondent had relied on the authority of Stanley Mombo Amuti v Kenya Anti-Corruption Commission [2019] KECA 783 (KLR), where the Supreme Court found that:-“In civil as in criminal proceedings, the plaintiff (prosecution) is solely responsible for deciding how to present its case and choosing which witnesses to call. In the instant case, the respondent alone bore the responsibility of deciding whether a person will be called as a witness in its case. (See Dabbah -v- Attorney-General for Palestine (1944) AC 156; Whitehorn -v-R (1983) 152 CLR 657). A court cannot ordinarily direct a party to call any witness. Save in exceptional circumstance, a trial court cannot call any witness. In the instant case, the appellant’s contestation that the respondent should have called Mr. Samuel Gitonga, Evelyn Mwaka and Antony Nganga Mwaura as witnesses has no legal foundation. In law, the appellant cannot compel the respondent to call a witness to support or rebut the respondent’s case; all that the respondent is obligated to do is call credible and material witnesses to prove its case to the required standard.” 10.It would be against the interest of justice and the defendant’s right to fair hearing to lock out a defence witness from being heard. For this reason, the plaintiff’s counsel objection is overruled and dismissed.It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 4TH DAY OF JUNE, 2026.HON. MBOGO C.G.JUDGE04/06/2026.In the presence of:Ms. Vena Atieno - Court assistantMr. Ndegwa holding brief for Mr. Keaton for the ApplicantMr. Ajak Jok holding brief for Mr. John Mbaluto for the 1st RespondentMr. Allan Kamau for the 2nd Defendant/Respondent