https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4533

Kemama & another (Suing as Personal Representative of the Estate of Amadeo Raymond Kemama (Deceased)) v Guangxi Hydroelectric Construction Bureau Kenya Limited (Environment and Planning Civil Case E001 of 2025) [2026] KEELC 4533 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEELC 4533 (KLR) Republic of Kenya In the Environment and Land Court at Meru Environment and Planning Civil Case E001 of 2025 JO Mboya, J July 16, 2026 FORMERLY MILIMANI ELC EPCC E009 OF 2024 Between Kenneth Muriuki Kemama 1st Plaintiff Anthony Roy Kemama 2nd Plaintiff Suing as Personal Representative of the Estate of Amadeo Raymond Kemama (Deceased) and Guangxi Hydroelectric Construction Bureau Kenya Limited Defendant Ruling 1.The subject ruling touches on and concerns an elementary issue of evidence. In particular, it touches on the legal import and tenor of re-examination of a witness after cross examination thereof; and whether a witness can tender and produce a new document [read exhibit] during re-examination or otherwise. 2.Suffice it to state that the scope of re-examination of a witness is underpinned by the provisions of Section 146 [3] of the Evidence Act, Chapter 80, Laws of Kenya. The pertinent segments of the section [supra] states thus:146.Order and direction of examinations.(1)……………………………………(2)………………………………………(3)The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter.(4)The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively. 3.Before venturing to address the critical issue, which underpins the subject ruling, it is imperative to provide a background to the matter. The background is otherwise straight forward. 4.On the 08.07.2026, the subject matter came up for hearing. During the hearing, learned counsel for the Plaintiff called his witness, namely; Kenneth Muriuki Kemama. The witness testified as PW1. The witness referenced his witness statement, which was duly adopted and constituted as his evidence in chief. In addition, the witness adverted to the list and bundle of documents filed; and thereafter sought to tender the documents as exhibits before the court. 5.Learned counsel for the defendant raised an objection to the production/admission of documents numbers [3] and [4] respectively. The objection was canvassed and thereafter responded to. The court was then obliged to render a ruling as pertains the admissibility of the documents. Suffice it to state, that the court duly rendered the ruling and ordered that the impugned documents be marked as PMFI-3 and 4, respectively. 6.Thereafter, the witness proceeded with his evidence in chief. The witness was later subjected to exhaustive cross examination by learned counsel for the Defendant. 7.It is important to state that after the conclusion of the cross examination, learned counsel for the Plaintiffs commenced re-examination. In the course of re-examination, learned counsel for the Plaintiffs sought to have the witness produce the documents, which had been marked for identification. The counsel contended that a witness, in this case, PW1, could produce the documents during re-examination. Suffice it to underscore that Learned Counsel remained adamant on the point. 8.The learned counsel for the defendant, as well as the court, were caught by surprise. Counsel for the defendant opposed the intended production of the documents during re-examination. Learned counsel raised two [2] key issues. The issues are: The court is functus officio on the question of production; and the intended production of documents during re-examination is legally untenable. 9.On the other hand, learned counsel for the Plaintiffs’ remined adamant and contended that the law allows the production of documents during re-examination. In particular, learned counsel for the plaintiffs submitted that documents which had already been marked for identification, in this case, PMFI – 3 and 4, could be tendered before the court at the time of re-examination. 10.In answer to a question from the court as pertains to the implications of Section 146 [3] of the Evidence Act, counsel posited that the said section allows production of new evidence. 11.Regarding the question as to whether the court was functus officio, learned counsel pointed out that the doctrine of functus officio, was inapplicable. All in all, learned counsel insisted that the witness could produce the documents during re-examination. 12.Having reviewed/considered the oral submissions that were canvassed by /on behalf of the respective parties, two [2] key issues emerge for consideration and determination. The issues are: Whether the court is prohibited by the doctrine of functus officio as pertains to the production of the impugned documents; and Whether any fresh documents/evidence can be introduced during re-examination. 13.Before venturing forward to address the thematic issues highlighted in the preceding paragraph, I beg to state that the subject ruling, constitutes a gross wastage of judicial time. The issue that underpins this ruling is so elementary, to the extent that I did not imagine, that at this time and age, a Judge can be called upon to interpret the scope of Section 146 [3] of the evidence Act to an Advocate of the High Court of Kenya. 14.Nevertheless, I must point out that it is part of the constitutional duty of this court to render the ruling. I am therefore obliged to do so. I have no option, but to discharge the call of duty. I do so with a heavy heart. 15.Back to the issues for consideration. I beg to start with the first issue. It is common ground that learned counsel for the Plaintiffs’ referenced his witness to various documents during examination in chief and thereafter sought to have the documents produced as exhibits. The production of documents numbers [3] and [4] were objected to. 16.Following the objection, the court was enjoined to deliver and indeed delivered a ruling. The ruling upheld the objection as pertains to admissibility of the impugned documents. The documents in question, were thereafter, marked for identification. 17.Despite the clear terms of the ruling, which touched on admissibility of the documents, learned counsel for the plaintiffs, sought to re-introduce the documents during re-examination. Counsel sought to defeat the ruling of the court by side-wind. 18.I must state that the question of admissibility of documents numbers [3] and [4] had been addressed and dealt with. Whereas the plaintiff could very well seek to be recalled, for whatever purpose, there is no gainsaying that the issue of production of the documents by PW1, had been addressed with finality. PW1 could not seek to reintroduce the documents during re-examination. 19.Without belaboring the point, the question of production of numbers [3] and [4] had been firmly dealt with. The court was therefore barred and prohibited from revisiting the said issue. Simply put, the court was functus officio, on the question of admissibility of documents numbers [3] and [4], respectively. 20.Before concluding on this issue, it suffices to take cognizance of the ratio in the case of Telkom Kenya Ltd v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) [2014] KECA 600 (KLR), where the court of appeal reaffirmed the legal tenor of the doctrine of functus officio. 21.The court stated thus:“ 24.The doctrine is not to be understood to bar any engagement by a court with a case that it has already decided or pronounced itself on. What it does bar is a merit-based decisional re-engagement with the case once final judgment has been entered and a decree thereon issued. There do therefore exist certain exceptions and these have been captured thus in Jersey Evening Post Ltd Vs Ai Thani [2002] JLR 542 at 550, also cited and applied by the Supreme Court; 25.A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available.” 22.I now wish to turn to the next issue. The issue concerns the legal implications and tenor of re-examination. To begin with, there are three [3] stages applicable during the taking of evidence by witnesses. The 1st segment/stage is referenced as evidence in chief [testimony in chief]. During the evidence in chief, a witness is called upon to speak to his /her case. At this stage, the witness tenders his/her evidence, including exhibits. [documentary evidence]. 23.The next stage is referenced as cross examination. This stage entails the witness being subjected to questions by adverse party, or the advocate for the adverse party [if any]. The purpose of cross-examination, is to test the credibility of the Witness; and the veracity of the Evidence tendered. 24.The last stage in a trial/hearing, is referenced as re-examination. Re-examination is undertaken by the advocate for the party who called the witness. Re-examination is essentially, intended to seek clarification as pertains to issues, which arose during cross examination. The scope of re-examination is circumscribed. No new evidence can be introduced. No documentary exhibit can be tendered. 25.The scope of the re-examination is provided for by the provisions of Section 146 [3] of the Evidence Act, Chapter 80 Laws of Kenya. Instructively, the contents of the said section were reproduced, elsewhere herein before. It is not apposite to repeat same. It suffices only to state that a witness cannot produce any documentary exhibit during re-examination. Such kind of endeavor is unorthodox. Conclusion: 26.The scope of re-examination cannot be gainsaid. The provision of the law underpinning re-examination is devoid of ambiguity. The provisions of Section 146 [3] of the Evidence Act does not allow production of new evidence, whether oral or documentary. 27.Quite clearly, the attempts by learned counsel for the Plaintiff to do so, and the insistence by same, constituted a grave misapprehension of the import of re-examination. 28.Perhaps, the Law Society of Kenya may be called upon to introduce refresher courses on matters of evidence and civil procedure. This may very well help our courts, in managing time and dispensing justice, without having to render rulings on mundane issues, like the one beforehand. Final orders: 29.Flowing from the analysis elsewhere herein before, I am persuaded that the objection taken by learned counsel for the defendant is meritorious. The objection is well grounded. 30.In the premises, the final orders are:i.The objection be and is hereby upheld.ii.The intended production of documents numbers [3] and [4] during re-examination is declined.iii.Costs of the objection are awarded to the Defendant. 31.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU ON 16TH JULY, 2026.OGUTTU MBOYA; FCIArb; CPM [MTI-EA].JUDGE.In the presence of:Court Assistant: ZakayoMr. Morgan Mwenda for the PlaintiffsMr. Emmanuel Eredi for the Defendant