[2005] KEHC 334 (KLR)
The court found that the plaintiff's case hinges on the agreement allegedly witnessed by a key witness whose credibility is central to the dispute. Since the witness was not listed as an attesting witness and her testimony is contested, it is essential for the trial judge to observe her demeanour directly....
Source-derived case information.
- Citation
- [2005] KEHC 334 (KLR)
- Parties
- Plaintiff: Azad Kara; Defendant: Mwangi Mutero
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 222 of 1997
- Procedural Posture
- Civil Case / Interlocutory Application for De Novo Hearing After Partial Hearing by Retired Judge
- Outcome
- Application for de novo hearing granted with conditions.
- Legal Topics
- De Novo Hearing, Witness Testimony, Evidence Rehearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Azad Kara
Plaintiff
Mwangi Mutero
Defendant
Procedural Posture
Civil Case / Interlocutory Application for De Novo Hearing After Partial Hearing by Retired Judge
Legal Issues
- 1 Whether the suit should be heard de novo after partial hearing by a retired judge.
- 2 Whether the key witness should be recalled to testify afresh before the new judge.
- 3 Who should bear the costs of recalling the witness from abroad.
Ratio Decidendi
The court found that the plaintiff's case hinges on the agreement allegedly witnessed by a key witness whose credibility is central to the dispute. Since the witness was not listed as an attesting witness and her testimony is contested, it is essential for the trial judge to observe her demeanour directly. Therefore, a de novo hearing is necessary. However, to mitigate prejudice to the plaintiff, the defendant, who seeks the rehearing, must bear the costs of bringing the witness from Saudi Arabia and her accommodation. The modalities of payment are to be arranged by counsel before the hearing date.
Court Disposition
Application for de novo hearing granted with conditions.
Orders
- The suit shall be heard de novo.
- The defendant shall pay for the travel and accommodation expenses of the plaintiff's witness from Saudi Arabia.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Case 222 of 1997
AZAD KARA……………………...................…………………………..PLAINTIFF
VERSUS
MWANGI MUTERO………………................…………………….DEFENDANT
RULING
This suit was partly heard by the retired Justice Ouna. Mr. Gikandi counsel for the defendant, has orally applied that Justice Ouna having taken the evidence of only one witness the case should be heard de noro. He also argued that the evidence given before Justice Ouna is important and that witness should testify afresh before me so that I am able to form an opinion on her demeanour.
Miss Osino for the plaintiff has strongly opposed that application arguing that the witness went to Saudi Arabia soon after testifying and that the plaintiff does not have her contact address. To demand that she comes back to Kenya will not only be expensive for the plaintiff but will also delay the hearing. In a quick rejoinder to that Mr. Gikandi said the defendant is ready to pay for her travel to Kenya and back to Saudi Arabia.
The defendant has denied having signed the agreement the witness said she saw him sign. Given the defendant’s defence that the cheques he gave to the plaintiff were for a consideration which totally failed, it appears to me that the plaintiff’s case is hinged squarely on that agreement. The witness having not been listed as one of those who witnessed the execution of the agreement, it will be her word against that of the defendant. The court hearing the evidence of both of them should therefore have the advantage of observing their demeanour. In the circumstances I direct that this suit be heard de noro on condition that the defendant pays the travel from Saudi Arabia and back as well as hotel accommodation charges for the plaintiff’s witness who had testified before Justice Ouna. Counsel for the parties to arrange the modalities of paying those expenses before the hearing date.
DATED and delivered this 29th day of September 2005.
D. K. MARAGA
JUDGE