[2012] KEHC 3714 (KLR)
The court determined that the issues raised in the originating summons could not be justly resolved on the basis of affidavit evidence and written/oral submissions alone. In the interest of justice, and in accordance with prior directions, the matter must proceed by way of oral evidence de novo, allowing for...
Source-derived case information.
- Citation
- [2012] KEHC 3714 (KLR)
- Parties
- Plaintiff: Christine Gachuru; Plaintiff: Javerson Macharia Njuguna; Plaintiff: Elizabeth Njeri Njuguna; Defendant: Vincent Gichuru Gaitho; Defendant: Patrick Magiri Gaitho; Defendant: Evelyn Wambui Kiarie
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 958 of 2006
- Procedural Posture
- Environmental and Land Case / Directions Prior to Judgment; Matter Referred for Oral Hearing De Novo
- Outcome
- Matter referred for hearing de novo by oral evidence; submissions insufficient for determination.
- Judges
- FI Koome
- Legal Topics
- Originating Summons, Oral Evidence, Affidavit Evidence, Directions, Examination and Cross Examination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christine Gachuru
Plaintiff
Javerson Macharia Njuguna
Plaintiff
Elizabeth Njeri Njuguna
Plaintiff
Vincent Gichuru Gaitho
Defendant
Patrick Magiri Gaitho
Defendant
Evelyn Wambui Kiarie
Defendant
Procedural Posture
Environmental and Land Case / Directions Prior to Judgment; Matter Referred for Oral Hearing De Novo
Legal Issues
- 1 Whether the suit can be determined on affidavit evidence and submissions alone.
- 2 Whether oral evidence and cross-examination are necessary for just determination of the dispute.
Ratio Decidendi
The court determined that the issues raised in the originating summons could not be justly resolved on the basis of affidavit evidence and written/oral submissions alone. In the interest of justice, and in accordance with prior directions, the matter must proceed by way of oral evidence de novo, allowing for examination and cross-examination of witnesses. This approach ensures that all factual disputes are properly ventilated and tested before the court, upholding the principles of fair hearing and due process.
Court Disposition
Matter referred for hearing de novo by oral evidence; submissions insufficient for determination.
Orders
- The suit shall be fixed for hearing by way of oral evidence de novo.
- The matter shall be mentioned on a priority basis before the presiding judge, Land and Environmental Division, for directions.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
MILIMANI LAW COURTS
Environmental & Land Case 958 of 2006
CHRISTINE GACHURU
JAVERSON MACHARIA NJUGUNA
ELIZABETH NJERI NJUGUNA ...………..................……. PLAINTIFFS
VERSUS
VINCENT GICHURU GAITHO
PATRICK MAGIRI GAITHO
EVELYN WAMBUI KIARIE ...…....................................... DEFENDANTS
DIRECTIONS
The originating summons dated 8th September, 2006, came up for hearing before me on 6th October, 2011. Both parties made oral and relied on written submissions and the judgment was scheduled for 17th February, 2012.
However, as I set out to write the Judgment, I encountered certain difficulties presented by issues that cannot be resolved by affidavit evidence. Upon perusal of the court file (although the proceedings have not been typed), I am able to discern from an order made by Rawal, J (as she then was) that the originating summons be heard by oral evidence based on affidavits. This means that if parties gave oral evidence, they can be subjected to the court room processes of examination and cross examination.
For the aforesaid reasons and in the interest of justice, I am unable to determine this suit by way of submissions. I direct that the matter be fixed for hearing by way of oral evidence de novo. Matter be mentioned on priority basis before the presiding judge, Land and Environmental Division for directions.
Directions given and signed this 17th day of February, 2012.
MARTHA KOOME
JUDGE OF APPEAL
Note:
This application was heard and concluded on 30th November, 2011, when I was a Judge of the High Court. The matter was pending for ruling when I was appointed as a Judge of the Court of Appeal. I proceed to write and append my signature thereto in my new capacity.