[2013] KEHC 926 (KLR)
The court recognized that while procedural rules require parties to adhere to their filed witness lists and evidence, the court retains discretion to allow deviations in the interest of justice. The defendant's request to call an additional witness after the plaintiff had closed his case was unprecedented and could...
Source-derived case information.
- Citation
- [2013] KEHC 926 (KLR)
- Parties
- Plaintiff: Erastus Itije M'Mutirithia; Defendant: M'Mbui M'Elong'i
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 50 of 2007
- Procedural Posture
- Civil Case / Interlocutory Application for Leave to Call Additional Witness After Close of Plaintiff's Case
- Outcome
- Application allowed with conditions.
- Judges
- FM Njoroge
- Legal Topics
- Leave to Call Additional Witness, Admissibility of Evidence, Land Adjudication, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erastus Itije M'Mutirithia
Plaintiff
M'Mbui M'Elong'i
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Leave to Call Additional Witness After Close of Plaintiff's Case
Legal Issues
- 1 Whether the defendant should be granted leave to call an additional witness not previously listed after the plaintiff has closed his case.
- 2 Whether allowing the additional witness would amount to an ambush and cause prejudice to the plaintiff.
Ratio Decidendi
The court recognized that while procedural rules require parties to adhere to their filed witness lists and evidence, the court retains discretion to allow deviations in the interest of justice. The defendant's request to call an additional witness after the plaintiff had closed his case was unprecedented and could potentially prejudice the plaintiff. However, considering the importance of the evidence and the emotive nature of land disputes, the court exercised its discretion to allow the defendant to call the District Land Adjudication Officer as a witness. This leave was granted on the strict condition that the defendant files and serves the witness statement within 21 days, failing...
Court Disposition
Application allowed with conditions.
Orders
- The defendant may call the District Land Adjudication Officer, Athanwa Adjudication Section, as a witness.
- The witness statement for the new witness must be filed and served within 21 days from the date of the ruling; failure to do so will result in the evidence being excluded.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL CASE NO. 50 OF 2007
ERASTUS ITIJE M'MUTIRITHIA.................................................................PLAINTIFF
VERSUS
M'MBUI M'ELONG'I..................................................................................DEFENDANT
R U L I N G
On 21. 8.2013, Mr. C. Otieno, advocate for the defendant made an oral application requesting the Court to allow him to call an extra witness who was not in his list of witnesses.
This oral application was vehemently opposed by Mr. V.P. Gituma, the advocate for the plaintiff who said that this application amounted to an ambush and would be prejudicial to his client's case.
Mr. Otieno said that Land was an emotive issue and the evidence to be given would be beneficial to both the plaintiff and the defendant. That knowledge is only within his confines at this moment. The intended witness is the Land Adjudication Officer, Athanwa Adjudication Section.
I have considered this matter. This is an unprecedented move. The plaintiff has already closed his case. Order 11 rule 8 stipulates that Memorandum and Order as stipulated should bind the parties unless the Court otherwise orders.
Parties should not be allowed to go on a fishing expedition with regard to evidence. I will, however, reluctantly allow the defendant to call his one witness with the proviso that the plaintiff will be allowed sufficient time to study the new evidence and to address the Court appropriately. I direct as follows:
The defendant may call the District Land Adjudication Officer, Athanwa Adjudication Section provided that the witness statement with regard to this witness will be filed and served upon the defendant within 21 days from today failing which the new evidence will not be entertained by the Court.
The plaintiff will be allowed sufficient time to study the new evidence.
Directions on 5. 12. 2013.
Delivered in Open court at Meru this 9th day of October, 2013 in the presence of:
Cc. Mwonjaru/Daniel
Otieno for Defendant – Absent
V. P. Gituma for Plaintiff – Absent
P. M. NJOROGE
JUDGE