[2017] KEHC 6759 (KLR)
The court held that the plaintiffs were mistaken in presuming the defence would call the Land Registrar as a witness. However, the documents sought to be admitted are material to the just resolution of the dispute, and their admission would not prejudice the defence, as the defence will have the opportunity to...
Source-derived case information.
- Citation
- [2017] KEHC 6759 (KLR)
- Parties
- Applicant: Charles Antony Ondiek; Applicant: Esaya Oyoo Warirro; Applicant: William Odhiambo Wariero; Applicant: Vitalis Otieno Wariero; Respondent: Thomas Odhiambo Nyonje; Respondent: Gideon Okech Rayola; Respondent: Stephen Nyanjwa Otieno; Respondent: William Kwame Otieno; Respondent: Evalyne Achieng Okoth; Respondent: Emanuel Otieno Onyngo; Respondent: Registrar of Lands Kisumu
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Case 63 of 2007
- Procedural Posture
- Civil Case / Ruling on Application to Reopen Plaintiffs' Case for Limited Purpose of Admitting Documents
- Outcome
- Application allowed with costs to the respondents.
- Judges
- HK Chemitei
- Legal Topics
- Reopening of Case, Admission of Evidence, Land Records, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Antony Ondiek
Applicant
Esaya Oyoo Warirro
Applicant
William Odhiambo Wariero
Applicant
Vitalis Otieno Wariero
Applicant
Thomas Odhiambo Nyonje
Respondent
Gideon Okech Rayola
Respondent
Stephen Nyanjwa Otieno
Respondent
William Kwame Otieno
Respondent
Evalyne Achieng Okoth
Respondent
Emanuel Otieno Onyngo
Respondent
Registrar of Lands Kisumu
Respondent
Procedural Posture
Civil Case / Ruling on Application to Reopen Plaintiffs' Case for Limited Purpose of Admitting Documents
Legal Issues
- 1 Whether the plaintiffs' case should be reopened for the limited purpose of admitting documents through the Land Registrar.
- 2 Whether reopening the case at this stage would prejudice the defence.
Ratio Decidendi
The court held that the plaintiffs were mistaken in presuming the defence would call the Land Registrar as a witness. However, the documents sought to be admitted are material to the just resolution of the dispute, and their admission would not prejudice the defence, as the defence will have the opportunity to cross-examine the Land Registrar. The application was made without undue delay, and both parties have contributed to the overall delay in the proceedings. In line with Article 159 of the Constitution, which mandates courts to prioritize substantive justice, the court found it appropriate to reopen the plaintiffs' case solely for the purpose of admitting the marked documents through...
Court Disposition
Application allowed with costs to the respondents.
Orders
- The plaintiffs' case is reopened solely for the Land Registrar to produce the marked documents.
- The defence counsels shall have the liberty and opportunity to cross-examine the Land Registrar.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CIVIL CASE NO. 63 OF 2007
CHARLES ANTONY ONDIEK …...........................1ST APPLICANT
ESAYA OYOO WARIRO …...................................2ND APPLICANT
WILLIAM ODHIAMBO WARIERO …....................3RD APPLICANT
VITALIS OTIENO WARIERO ….............................4TH APPLICANT
VERSUS
THOMAS ODHIAMBO NYONJE …...................1ST RESPONDENT
GIDEON OKECH RAYOLA …..........................2ND RESPONDENT
STEPHEN NYANJWA OTIENO ….....................3RD RESPONDENT
WILLIAM KWAME OTIENO ….........................4TH RESPONDENT
EVALYNE ACHIENG OKOTH ….......................5TH RESPONDENT
EMANUEL OTIENO ONYNGO ….....................6TH RESPONDENT
REGISTRAR OF LANDS KISUMU …...............7TH RESPONDENT
RULING
By their application dated 10/1/2017 the plaintiffs/applicants pray that;
a) The Honourable court be pleased to reopen the plaintiffs case.
b) The reopening be only limited to admission of documents by the Registrar of Lands Kisumu which were marked for identification as MFI 1-80 contained in schedule two of the plaintiff list of documents dated 22/10/201 and filed on 27/10/2010.
The application is supported by the affidavit of Anthony T. Oluoch the plaintiff's counsel. He argued that after closing the plaintiff's case he expected that the defendants were going to call the land Registrar as a witness so that he could produced the documents which the plaintiffs had marked. Apparently the defendants indicated that they were not going to do so.
The defendants on their part have submitted that the applicant has come too late in the day and that the same is solely meant to delay the fast conclusion of this case. That it was the mistake of the plaintiff's advocate not to call the Land Registrar and thus the said witness would simply fill the gaps on behalf of the plaintiffs.
Having read the parties submissions as well as the numerous authorities on record, the basic argument is whether the reopening of the plaintiffs case and calling of the Land Registrar will prejudice the defence case.
For now the defendants have not argued their case. Clearly it was too presumptuous for the plaintiffs to imagine that the defence would call the same witnesses they were anticipating. This is the plaintiffs case and they ought to have exhibited their evidence.
The documents in my view which were marked would help this court arrive at a fair conclusion of this matter. I do not think that the defendants would suffer any prejudice or at all. They shall be at liberty to cross examine the Land Registrar. The application in my view has been made expeditiously and without any undue delay. I agree however that this matter has taken a long time the both parties have in one way or the other contributed to the delay.
The provisions of Article 159 of the Constitution I believe applies herein. There ought to be a just conclusion of the case and speedly.
The court is mandated to look substative justice. The issues herein revolve around land and the Land Registrar being custodian of the records ought to shed more light.
In allowing the application the case shall only be re-opened for the Land Registrar to produce the only marked documents and nothing else. The defence counsels shall have the liberty and opportunity to cross-examine the said witness.
The respondent shall have the costs of this application.
Delivered on this 9th day of March 2017.
________________
H.K. CHEMITEI
JUDGE
In the presence of;
Wanyama holding brief for D.B. Onyango for 6th defendant
S.M. Onyango for 1st, 2nd 3rd and 4th defendants
Oluoch for plaintiff
Kirong -Court Assistant