[2024] KEELC 4139 (KLR)
The court dismissed the defendant's application on two main grounds. First, both parties failed to comply with the court's directions to file written submissions, warranting dismissal for non-compliance. Second, even if submissions had been filed, the court found no compelling reason to allow the defendant to...
Source-derived case information.
- Citation
- [2024] KEELC 4139 (KLR)
- Parties
- Plaintiff: Japhet Noti Charo; Defendant: Reuben Mulwa Kioko
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 27 of 2014
- Procedural Posture
- Notice of Motion Application / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs
- Judges
- FM Njoroge
- Legal Topics
- Testimony by Attorney, Power of Attorney, Court Directions, Non Compliance With Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Japhet Noti Charo
Plaintiff
Reuben Mulwa Kioko
Defendant
Procedural Posture
Notice of Motion Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the defendant should be allowed to testify through his appointed attorney due to illiteracy.
- 2 Whether illiteracy constitutes sufficient grounds for granting leave to testify by attorney.
- 3 Effect of parties' failure to comply with court directions on filing submissions.
Ratio Decidendi
The court dismissed the defendant's application on two main grounds. First, both parties failed to comply with the court's directions to file written submissions, warranting dismissal for non-compliance. Second, even if submissions had been filed, the court found no compelling reason to allow the defendant to testify through his attorney. The court held that illiteracy, in the absence of any other disability, does not justify such an order, especially since the defendant is alive, well, and has already partially testified. The court emphasized that the defendant's own evidence is crucial and that interpretation services can be provided if necessary. Allowing two different persons to give...
Court Disposition
application dismissed with costs
Orders
- The notice of motion application dated 6th February 2024 is dismissed with costs.
- The defendant/applicant shall testify in person at the hearing.
Full Case Text
Judgment text and source record
20 paragraphs
Charo v Kioko (Environment & Land Case 27 of 2014) [2024] KEELC 4139 (KLR) (14 May 2024) (Ruling)
Neutral citation: [2024] KEELC 4139 (KLR)
Republic of Kenya
In the Environment and Land Court at Malindi
Environment & Land Case 27 of 2014
FM Njoroge, J
May 14, 2024
Between
Japhet Noti Charo
Plaintiff
and
Reuben Mulwa Kioko
Defendant
Ruling
1. For determination is the notice of motion application dated 6th February 2024, filed by the Defendant/applicant on the even date. The substantive order sought by the Defendant/applicant is that he be allowed to testify through his duly appointed attorney one Samson Kmbitha Mwambire.
2. The application is premised on the grounds set out on the face of the motion and the supporting affidavit sworn by the applicant on 6th February 2024. This court understands the basis of the application to be that the applicant is illiterate thus will not be able to read out documents alluded to by both the Plaintiff/respondent and himself. He annexed a copy of power of attorney donated to the said Samson Kmbitha Mwambire.
The application is unopposed. 3. On 5th March 2024, when the matter was mentioned for directions, the court directed applicant and the respondent to file written submissions within a specified time frame. The time frames given to parties to do so has since lapsed and none of them has complied. The outcome is that the application is dismissed for failure to comply with this court’s directions.
4. In any event, and even assuming that the directions had been complied with, this court finds no compelling reason to allow the application on the basis that the claim that the defendant/applicant is illiterate is not a sufficient ground to warrant the orders sought. It is the applicant who knows his case well and it is his evidence that is dearly needed in this suit. He is alive and well. Save for the qualification that he is illiterate, he is under no disability that can sway this court into granting the orders sought. This court notes that he has already partially given his evidence-in-chief and in the circumstances of this case there is no need to have a checquered body of evidence-in-chief given by two different persons. That would be an indelible stain in this court’s record. Since the defendant/applicant is well represented by a competent advocate and any interpretation needed can and will be procured at the hearing thereof I order that the applicant should testify in person.
5. The outcome is that the application dated 6th February 2024 is unmerited. It is hereby dismissed with costs.
DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 14TH DAY OF MAY 2024. MWANGI NJOROGEJUDGE, ELC, MALINDI.