[2022] KEELC 1221 (KLR)
The court held that documents and witness statements not produced during evidence in chief cannot be introduced during re-examination. The purpose of re-examination is to clarify matters raised in cross-examination, not to introduce new evidence. The court further held that Article 159(2)(d) of the Constitution,...
Source-derived case information.
- Citation
- [2022] KEELC 1221 (KLR)
- Parties
- Applicant: Florence W Mbugua (suing as administrator of the Estate of Rosemary Wanjiku Munyua, Deceased); Respondent: Beatrice N Maina (Administratrix, Estate of Joseph M Munyua, Deceased)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 556 of 2010
- Procedural Posture
- Environment and Land Court Suit / Ruling on Objection During Trial
- Outcome
- Objection upheld. Application to produce documents and witness statement during re-examination denied.
- Judges
- EK Wabwoto
- Legal Topics
- Admissibility of Evidence, Production of Documents, Re Examination, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Florence W Mbugua (suing as administrator of the Estate of Rosemary Wanjiku Munyua, Deceased)
Applicant
Beatrice N Maina (Administratrix, Estate of Joseph M Munyua, Deceased)
Respondent
Procedural Posture
Environment and Land Court Suit / Ruling on Objection During Trial
Legal Issues
- 1 Whether documents and witness statements not produced during evidence in chief can be introduced during re-examination.
- 2 Whether Article 159(2)(d) of the Constitution can cure procedural errors relating to the production of evidence.
Ratio Decidendi
The court held that documents and witness statements not produced during evidence in chief cannot be introduced during re-examination. The purpose of re-examination is to clarify matters raised in cross-examination, not to introduce new evidence. The court further held that Article 159(2)(d) of the Constitution, which calls for substantive justice, does not serve as a remedy for procedural errors made by counsel. Established procedures must be followed to ensure fairness and order in trial proceedings. Consequently, the objection to the production of new documents and witness statement during re-examination was upheld.
Court Disposition
Objection upheld. Application to produce documents and witness statement during re-examination denied.
Orders
- The objection to the production of documents and witness statement during re-examination is upheld.
- The applicant is barred from producing new documents and witness statement not produced during evidence in chief.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MILIMANI
ELC SUIT NO. 556 OF 2010
FLORENCE W MBUGUA
(suing as administrator of the Estate of
ROSEMARY WANJIKU MUNYUA (Deceased)........................................APPLICANT
=VERSUS=
BEATRICE N MAINA (Administratrix,
Estate of JOSEPH M MUNYUA (Deceased)......................................... RESPONDENT
RULING No. 1
I have considered the objection made by Mr. Ombwayo for the Respondent and the response made by Mr. Mwariri for the Applicant. It is clear that the documents were not admitted nor produced by the witness who is also the Applicant during her evidence in chief.
I have also keenly perused he record and I have noted that during cross examination, the witness conceded that indeed her documents and witness statement had not been produced during her evidence in chief. As such, the same cannot be produced during Re-Examination.
The role of re-examination is to clarify what was stated in cross examination. Under our legal system a party cannot be allowed to produce and adduce new documents. The witness is therefore barred from producing new documents and witness statement that was not produced during evidence in chief.
Counsel for the Applicant Mr Mwariri also requested this court to allow the said documents and do substantive justice as provided for under Article 159(2) (d) of the Constitution. However, it is the position of this court that Article 159(2)(d) is not a panacea to procedural errors occasioned by counsels.
Courts are guided by well established procedures which outline how trials ought to be undertaken. The objection is upheld.
It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI IN OPEN COURT THIS 24TH DAY OF FEBRUARY 2022.
E. K. WABWOTO
JUDGE
In Presence of: -
Mr. Mwariri for the Applicant.
Mr. Ombwayo for the Respondent
Court Assistant: Caroline Nafuna.