[2022] KEELC 13445 (KLR)
The court held that while cross-examination is generally broad in scope, it is improper and prejudicial to cross-examine a witness based on a witness statement that has been substituted and will not be relied upon by the party during trial. Allowing such cross-examination would disadvantage the party whose statement...
Source-derived case information.
- Citation
- [2022] KEELC 13445 (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 Objection to Cross Examination
- Outcome
- Objection upheld; cross-examination on substituted statement disallowed.
- Judges
- LN Mbugua
- Legal Topics
- Cross Examination, Witness Statements, Substitution of Evidence, 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 Objection to Cross Examination
Legal Issues
- 1 Whether PW1 can be cross examined on the contents of a substituted witness statement of the 1st defendant.
- 2 Whether reliance on a substituted witness statement in cross examination is prejudicial to the 1st defendant.
Ratio Decidendi
The court held that while cross-examination is generally broad in scope, it is improper and prejudicial to cross-examine a witness based on a witness statement that has been substituted and will not be relied upon by the party during trial. Allowing such cross-examination would disadvantage the party whose statement was replaced, as they would have limited or no opportunity to clarify or address issues arising from a statement that is no longer operative. Therefore, the objection to cross-examination on the substituted statement was upheld.
Court Disposition
Objection upheld; cross-examination on substituted statement disallowed.
Orders
- PW1 shall not be cross examined on content captured in the previous statement of 1st defendant.
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 13445 (KLR) (6 October 2022) (Ruling)
Neutral citation: [2022] KEELC 13445 (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. This ruling is in respect of the applications made by counsel for the 1st defendant who has objected to the cross examination of PW1 by counsel for 2nd defendant in relation to the witness statement of 1st defendant sworn by one Abwao Erick. It is averred that that statement was substituted through an application allowed by this court on 22. 7.2021.
2. In rejoinder, counsel for 2nd defendant avers that despite the substitution, that witness statement of 1st defendant was never expunged and is still on record, that cross examination is wide and that in the interest of justice, PW1 should be cross examined.
3. In the case of Law Society of Kenya v. Faith Waigwa & 8 others[2018] eKLR the court stated that;“The rationale of cross-examination of a witness; first it is a mechanism which is used to bring out desirable facts or modify or clarify or establish the cross examiner’s case. In other words, cross – examination is meant to extract the qualifying facts of circumstances left out by a witness in a testimony given in examination in chief…”
4. In the instant case the counsel for 2nd defendant has embarked on cross – examination of PW1 in relation to a witness statement of 1st defendant which statement shall not be relied on by 1st defendant during the trial, as the same was substituted. I find that much as a cross examiner has great latitude at the stage of cross examination, undertaking the exercise of cross examination based on a witness statement which shall not be relied upon will be prejudicial to the case of 1st defendant, in that the opportunity to make any clarifications there of shall be limited or none existent.
5. I therefore uphold the objection and hence the witness (PW1) shall not be cross examined on content captured in the previous statement of 1st defendant.
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