[2022] KEELC 13412 (KLR)
The court held that although the plaintiff's counsel was disorganised in seeking to produce the additional bundle of documents during cross-examination, the documents had been identified during the pre-trial conference and there was no element of ambush. Since the witness was still under cross-examination, the...
Source-derived case information.
- Citation
- [2022] KEELC 13412 (KLR)
- Parties
- Plaintiff: Jedidah Ngina Kibuna; Defendant: City Council of Nairobi; Defendant: Abraham Mwangi Njihia; Defendant: Chief Land Registrar; Defendant: Morris Gitonga Njue; Defendant: Vera Mwasi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Case Civil Suit 529 of 2018
- Procedural Posture
- Civil Suit / Ruling on Admissibility of Documents During Trial
- Outcome
- Objection declined; plaintiff allowed to produce the additional bundle of documents during cross-examination.
- Judges
- LN Mbugua
- Legal Topics
- Admissibility of Evidence, Production of Documents, Trial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jedidah Ngina Kibuna
Plaintiff
City Council of Nairobi
Defendant
Abraham Mwangi Njihia
Defendant
Chief Land Registrar
Defendant
Morris Gitonga Njue
Defendant
Vera Mwasi
Defendant
Procedural Posture
Civil Suit / Ruling on Admissibility of Documents During Trial
Legal Issues
- 1 Whether the plaintiff can be allowed to produce an additional bundle of documents during cross-examination after failing to do so in examination-in-chief.
- 2 Whether the procedural lapse by the plaintiff's counsel warrants rejection of the documents.
- 3 Whether the defendants would suffer prejudice if the documents are admitted at this stage.
Ratio Decidendi
The court held that although the plaintiff's counsel was disorganised in seeking to produce the additional bundle of documents during cross-examination, the documents had been identified during the pre-trial conference and there was no element of ambush. Since the witness was still under cross-examination, the defendants would have the opportunity to challenge the documents' veracity and legitimacy. The procedural lapse did not occasion any prejudice to the defendants, and the right to be heard outweighed the procedural infraction. Therefore, the objection to the production of the documents was declined, and the documents were admitted for cross-examination.
Court Disposition
Objection declined; plaintiff allowed to produce the additional bundle of documents during cross-examination.
Orders
- The plaintiff is permitted to produce the bundle of documents dated February 26, 2020 during cross-examination.
- The 4th and 5th defendants' objection to the production of the documents is declined.
Full Case Text
Judgment text and source record
28 paragraphs
Kibuna v City Council of Nairobi & 4 others (Environment and Land Case Civil Suit 529 of 2018) [2022] KEELC 13412 (KLR) (6 October 2022) (Ruling)
Neutral citation: [2022] KEELC 13412 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment and Land Case Civil Suit 529 of 2018
LN Mbugua, J
October 6, 2022
Between
Jedidah Ngina Kibuna
Plaintiff
and
City Council of Nairobi
1st Defendant
Abraham Mwangi Njihia
2nd Defendant
Chief Land Registrar
3rd Defendant
Morris Gitonga Njue
4th Defendant
Vera Mwasi
5th Defendant
Ruling
1. I find that counsel for the plaintiff has made an application for PW1 to produce another bundle of documents filed on February 26, 2020 after the witness has given her evidence in chief and the cross examination is underway. This is a mark of disorganisation on the part of the said advocate. Having conducted a pre trial exercise on June 21, 2022, the parties ought to know by now the nature and extent of the documents, they desire to rely upon.
2. However, the right to be heard is sacrosant and the question this court poses is: is the procedural infraction sufficient to warrant the rejection of the said bundle.
3. I find that on June 21, 2022 counsel for plaintiff did identify two bundles they were to rely upon. One dated February 24, 2020 and another of February 26, 2020. So this is not a case of an ambush but a procedural lapse where the plaintiffs simply neglected or forgot to produce the said bundle during examination in chief.
4. What prejudice will be occasioned upon the rest of the parties if the bundle is produced? I find that the witness is still on the dock, and cross examination is under way. Thus the parties will still have a chance to cross examine the witness in relation to the said documents.
5. On the issue of the objection raised by counsel for the 4th & 5th defendants, I find that no basis has been laid in challenging the said document which appears to be a list. The said defendants will have a chance to cross examine the said witness on the veracity and legitimacy of the said document at the appropriate stage. The objection raised by counsel for 4th – 5th defendant is declined.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 6TH DAY OF OCTOBER, 2022 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Desmond Maina for the PlaintiffKatila for the 1st DefendantOndabu for the 2nd DefendantFatma for the 3rd DefendantNyaga for the 4th & 5th DefendantCourt assistant: Joan