[2019] KEELC 94 (KLR)
The court held that the right to be heard, as enshrined in Article 50(1) of the Constitution and the principle of Audi Alteram Partem, extends to the opportunity to cross-examine the opposing party. Given the age of the case (over 21 years) and the lack of demonstrated prejudice to the defence, the court found that...
Source-derived case information.
- Citation
- [2019] KEELC 94 (KLR)
- Parties
- Plaintiff: Esther Kathambi Delfin; Defendant: M’Imbere Keraine
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 67 of 1998
- Procedural Posture
- Environment and Land Case / Ruling on Oral Application to Recall Witness for Cross Examination
- Outcome
- Application allowed; DW1 to be recalled for cross-examination.
- Legal Topics
- Recall of Witness, Right to Be Heard, Cross Examination, Delay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Kathambi Delfin
Plaintiff
M’Imbere Keraine
Defendant
Procedural Posture
Environment and Land Case / Ruling on Oral Application to Recall Witness for Cross Examination
Legal Issues
- 1 Whether the plaintiff should be allowed to recall DW1 for cross-examination after previously failing to do so.
- 2 Whether a formal application is necessary for recalling a witness for cross-examination in the circumstances.
- 3 Whether the defendant would suffer prejudice if DW1 is recalled for cross-examination.
Ratio Decidendi
The court held that the right to be heard, as enshrined in Article 50(1) of the Constitution and the principle of Audi Alteram Partem, extends to the opportunity to cross-examine the opposing party. Given the age of the case (over 21 years) and the lack of demonstrated prejudice to the defence, the court found that requiring a formal application would only cause further delay. The court exercised its discretion to allow the oral application, prioritizing substantive justice and the fair hearing rights of the parties over procedural technicalities. The application to recall DW1 for cross-examination was therefore allowed, and the matter was ordered to proceed from where it had stopped.
Court Disposition
Application allowed; DW1 to be recalled for cross-examination.
Orders
- DW1 to be recalled for cross-examination by the plaintiff.
- Matter to proceed from where it had stopped.
Full Case Text
Judgment text and source record
25 paragraphs
THE REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC CASE NO. 67 OF 1998
ESTHER KATHAMBI DELFIN..................................................................PLAINTIFF
VERSUS
M’IMBERE KERAINE.............................................................................DEFENDANT
RULING
1. This ruling is in respect of the application made orally by Mr. Karuti, counsel for the plaintiff on 15. 10. 2019 where orders were sought to cross examine DW 1, who had earlier on testified but was not cross examined by the said counsel. Mr. Karuti averred that filing a formal application will only delay this matter further.
2. Mr. Abuor for the defendant objected to the application averring that the matter should proceed from where case had stopped and that a formal application ought to be filed.
3. Almost a year and half ago on 6. 7.2018, Mr. Karuti made an application to recall the witness (DW1) who testified on 14. 6.2018 for cross examination. The application was opposed on that day by Mr. Abuor who averred that Mr. Karuti had appeared before Judge Cherono who was handling the matter on that day and that the matter was scheduled for 2. 00 pm, however Mr. Karuti did not appear that afternoon but the plaintiff had proceeded to cross examine the witness (DW 1).
4. I have perused the record. I find that this matter was substantially heard by Justice Cherono during the ELC service week. It appears that earlier in the day of 14. 6.2018, Mr. Karuti had ceased acting for the client (plaintiff). Perhaps this issue of representation is what prompted Mr. Karuti not to appear before court that afternoon.
5. Ordinarily, such applications to cease acting ought not to be made on the date of hearing, more so where the matter is old and is being handled by a visiting judge.
6. On the other hand, this court is conscious of the fact that the right to be heard which is anchored in the Latin Maxim “Audi Alteram Partem” should be guarded jealously by the courts.
7. The provisions of Article 50 (1) of the constitution also stipulate that;
“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body”.
8. The right to be heard extends to having an opportunity or platform to cross examine the opponent party.
9. This matter is already over 21 years old. A formal application will only delay the matter further. I also find that the defence has not demonstrated the prejudice they stand to suffer if DW1 is recalled for cross examination.
10. In the circumstances I allow the application to have DW 1 cross examined. Thereafter, matter is to proceed from where case had stopped.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 3RD DAY OF DECEMBER, 2019 IN THE PRESENCE OF:-
C/A: Kananu
Defendant
Plaintiff
HON. LUCY. N. MBUGUA
ELC JUDGE