[2021] KEELC 2594 (KLR)
The court held that a formal application is not necessary for the issuance of witness summons to a particular witness where the interests of justice require their testimony. The court relied on Article 159(2)(d) of the Constitution, which mandates that justice be done without undue regard to procedural...
Source-derived case information.
- Citation
- [2021] KEELC 2594 (KLR)
- Parties
- Applicant: Charity Tirindi Mukira; Respondent: Elias Kiriinya; Respondent: Anastacia Nkatha; Respondent: County Government of Meru
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 12 of 2021
- Procedural Posture
- Constitutional Petition / Interlocutory Application for Witness Summons
- Outcome
- Application for witness summons allowed.
- Legal Topics
- Witness Summons, Procedural Fairness, Right to Fair Hearing, Land Dispute, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charity Tirindi Mukira
Applicant
Elias Kiriinya
Respondent
Anastacia Nkatha
Respondent
County Government of Meru
Respondent
Procedural Posture
Constitutional Petition / Interlocutory Application for Witness Summons
Legal Issues
- 1 Whether a formal application is necessary for the issuance of witness summons to a county surveyor.
- 2 Whether the objection by the 2nd respondent to the oral application for summons is valid.
- 3 Whether the testimony of the county surveyor is essential for the resolution of the dispute.
Ratio Decidendi
The court held that a formal application is not necessary for the issuance of witness summons to a particular witness where the interests of justice require their testimony. The court relied on Article 159(2)(d) of the Constitution, which mandates that justice be done without undue regard to procedural technicalities. The court found that the evidence or information from the survey office is central to the resolution of the dispute and that the 2nd respondent's objection was not persuasive, especially as their list of witnesses did not clarify whether the county surveyor was their witness. Accordingly, the court allowed the oral application and ordered that summons issue to P.W. Kimani,...
Court Disposition
Application for witness summons allowed.
Orders
- Summons to issue to P.W. Kimani, County Surveyor, to attend court on the scheduled hearing date.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC PETITION NO. 12 OF 2021
IN THE MATTER OF ARTICLES 2, 3, 10, 19, 20, 21, 22, & 23 OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF THE CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 1, 2, 27, 28, 40, 47 & 50 OF THE CONSTITUTION OF KENYA 2010
BETWEEN
CHARITY TIRINDI MUKIRA ...............................PETITIONER
VERSUS
ELIAS KIRIINYA ............................................1ST RESPONDENT
ANASTACIA NKATHA .................................2ND RESPODNENT
COUNTY GOVERNMENT OF MERU........3RD RESPODNENT
RULING
1. This matter is scheduled for hearing on 26. 10. 2021. On 25. 5.2021, counsel for the petitioner made an oral application for summons to issue to one P.W Kimani, a county surveyor Meru county to attend the hearing on 26. 10. 2021.
2. Mr. Kiety for the 2nd respondent (read the Attorney General) objected to this prayer averring that they would be put in an awkward position as the officer will be their witness. He stated that the petitioner ought to make a formal application.
3. I find that it is not necessary for the petitioner to make a formal application on the issue of summons to a particular witness. The provisions of Article 159 (2) (d) require that justice be done without undue regard to procedural technicalities.
4. Further, I find that the resolution of the dispute herein more or less fall squarely on the evidence or information from the survey office. So either way, there is a need to have the testimony of a surveyor.
5. The 2nd respondent raised the objection on the summons to the county surveyor yet they have not availed their list of witnesses for the court to discern if the said officer is one of their witnesses. However, in the course of writing this ruling, I have seen the list of witnesses for the 2nd respondent which contain the name of one person only namely; George Kimathi,whose statement is not in the file. As such, the court is not able to discern who this George Kimathi is.
6. In the circumstances, I allow the application made by the petitioners, hence summons are to issue to one P.W. Kimani, the County Surveyor to attend court on the scheduled date.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 14TH DAY OF JULY, 2021 IN PRESENCE OF:
C/A: Kananu
Waigwa for petitioner
Kiety for Attorney General
HON. LUCY. N. MBUGUA
ELC JUDGE