[2017] KEELC 3343 (KLR)
The court found that although prior directions required filing of documents and statements for remaining witnesses, the document sought to be produced was a judgment from another court, a type of document for which judicial notice can be taken. The court held that recalling the plaintiff solely for the purpose of...
Source-derived case information.
- Citation
- [2017] KEELC 3343 (KLR)
- Parties
- Plaintiff: Charles Kaburu; Defendant: Munyua Ndatho
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 30 of 2017
- Procedural Posture
- Civil Suit / Ruling on Application to Recall Plaintiff for Production of Document
- Outcome
- Application to recall plaintiff for production of judgment allowed.
- Judges
- LN Mbugua
- Legal Topics
- Recall of Witness, Production of Documents, Judicial Notice, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Kaburu
Plaintiff
Munyua Ndatho
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Recall Plaintiff for Production of Document
Legal Issues
- 1 Whether the plaintiff should be recalled to produce a judgment from Nkubu SPM's Court as additional evidence.
- 2 Whether the recall of the plaintiff would prejudice the defendant or contravene prior court directions.
Ratio Decidendi
The court found that although prior directions required filing of documents and statements for remaining witnesses, the document sought to be produced was a judgment from another court, a type of document for which judicial notice can be taken. The court held that recalling the plaintiff solely for the purpose of producing the judgment would not prejudice the defendant and was in the interest of justice, given the nature of the document and the long history of the case. Therefore, the application to recall the plaintiff for this limited purpose was allowed.
Court Disposition
Application to recall plaintiff for production of judgment allowed.
Orders
- Plaintiff is recalled only for the purpose of producing the judgment of Nkubu SPM's Court Cr. Case No. 957 of 04.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT MERU
CIVIL SUIT NO. 30 OF 2017
CHARLES KABURU.....................................................PLAINTIFF
VERSUS
MUNYUA NDATHO …..............................................DEFENDANT
R U L I N G
This Ruling is in respect of the application made by Plaintiff's Counsel to recall. Plaintiff (PW1) to produce document, the judgment in Nkubu SPM'S Court Cr. Case. No. 957 of 04. The basis upon which the application is made is that:-
When the Court gave Pre trial directions on 02:02:17, Plaintiffs side had indicated that they will rely on their list dated 14:11:16.
Plaintiff's side now states:-
i. That there was no objection to that list.
ii. That the documents were filed pursuant to a Court order.
iii. That Plaintiff can only respond to allegations made in defence statements by being put on the dock.
iv. That when the Plaintiff testified, the Nkubu Case had not been finalized.
That defendant will not in anyway be prejudiced.
The application is opposed whereby defence Counsel states that:-
(a) Plaintiff knew his case when the matter was fixed.
(b) That Plaintiff and the Land Registrar have already testified.
(c) That Plaintiff wants to cure defects that arose during the cross examination.
(d) That in his statements he confirms he has already testified.
This Court being a Court of record as well as a Court of justice has to be guided by what is on Record and what is just and fair.
I find that this is a very old case, the same having been filed way back in 2002. Plaintiff gave his testimony as from 07:06:06 upto 08:03:11. It is more than 10 years now from the time Plaintiff commenced his testimony.
I also find that the case has been handled by several Judges. On 29:09:16 Judge Gikonyo gave directions as follows:-
i. The parties shall be provided with copies of complete set of proceedings at a cost.
ii. Second, Plaintiff shall file and serve witness statements for the remaining witnesses as well as documents.
It is clear from this order that for any documents and statements that were to be filed, it was in respect of the remaining witnesses, and not to recall the Plaintiff.
That not withstanding, I find that the document which Plaintiff desires to produce is Judgment of Nkubu Court. Judicial Proceedings are matters where Judicial Notice of their existence can be presumed. That being the case, I do allow the recalling of the Plaintiff only for purposes of the production of the said document.
DELIVERED IN OPEN COURT AT MERU THIS 13TH MARCH, 2017 IN THE PRESENCE :-
CA: Janet
Mbaikiata h/b for Kiogora
Mugambi for Plaintiff
Plaintiff present
L.N. MBUGUA
JUDGE