[2009] KEHC 3771 (KLR)
The court held that since the Plaintiff had closed his case, the Defendant had testified, and only one witness remained, it would be fair and in accordance with Order XVII Rule 10(1) of the Civil Procedure Rules for the suit to proceed from where it was left. The provision allows a successor judge to continue with...
Source-derived case information.
- Citation
- [2009] KEHC 3771 (KLR)
- Parties
- Plaintiff: Joseph Kinuthia Mwangi; Defendant: Geoffrey Irungu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 556 of 2007
- Procedural Posture
- Civil Case / Interlocutory Ruling on Mode of Proceeding After Change of Judge
- Outcome
- Application to proceed de novo refused; suit to proceed from where it was left.
- Judges
- JL Osiemo
- Legal Topics
- Transfer of Judge, Hearing De Novo, Admissibility of Evidence, Joint Ownership of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kinuthia Mwangi
Plaintiff
Geoffrey Irungu
Defendant
Procedural Posture
Civil Case / Interlocutory Ruling on Mode of Proceeding After Change of Judge
Legal Issues
- 1 Whether the suit should proceed de novo or continue from where it was left after change of judge.
- 2 Whether Order XVII Rule 10 of the Civil Procedure Rules applies to the present circumstances.
Ratio Decidendi
The court held that since the Plaintiff had closed his case, the Defendant had testified, and only one witness remained, it would be fair and in accordance with Order XVII Rule 10(1) of the Civil Procedure Rules for the suit to proceed from where it was left. The provision allows a successor judge to continue with the proceedings based on the evidence already recorded, ensuring judicial efficiency and fairness to both parties. The court thus ordered that the matter proceed from the stage it had reached before the change of judge.
Court Disposition
Application to proceed de novo refused; suit to proceed from where it was left.
Orders
- The suit shall proceed from the stage at which it was left before the change of judge.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
(MILIMANI LAW COURTS)
CIVIL CASE ELC 556 OF 2007
JOSEPH KINUTHIA MWANGI....……..PLAINTIFF
VERSUS
GEOFFREY IRUNGU………………………………DEFENDANT
R U L I N G
The Plaintiff and the Defendant are brothers. The Defendant is the registered proprietor of the suit land being LR LOC 18/kirere/201. The Plaintiff sued the Defendant for orders claiming half share of the suit property on the ground that it was jointly purchased.
The suit was heard by Aluoch J (as she then was) but was elevated before she concluded it. The Plaintiff had closed his case and the Defendant has also testified and only one witness was left.
When the matter came to me for directions, Miss Manengere learned Counsel for the Plaintiff applied that the suit be heard de novo while Miss Kinuthia applied that the matter do proceed from where it was left relying on Order XVII Rule 10 of the Civil Procedure Rules which provides:
“XVII 10(1) where a judge is prevented by death, transfer or other cause from concluding the trial of suit or the hearing of any application, his successor may deal with any evidence taken down under the aforegoing rules as if such evidence had been taken down by him or under his direction under the said rules, and may proceed with the suit or application from the stage at which his predecessor left it .”
I have considered the submissions by both Counsel. The Plaintiff having closed his case and the Defendant having testified and only one witness is left, it would be only fair that the suit proceeds from where it was left and it is so ordered.
Dated and delivered at Nairobi this 7th day of May 2009.
J. L. A. OSIEMO
JUDGE