[2017] KEELC 819 (KLR)
The court held that directors or former directors of a company are not among the persons rendered incompetent as witnesses by the Evidence Act. There is no statutory or case law barring directors from testifying against their company. The objection by the Defendants was unsupported by law or precedent. The court...
Source-derived case information.
- Citation
- [2017] KEELC 819 (KLR)
- Parties
- Plaintiff: Kyalo Tuta (Suing as the legal representative of the Estate of Wanza Tuta – Deceased); Defendant: Tutus Wambua Ngoloma; Defendant: Dominic Mutune Nthenge; Defendant: Mwea Farmers Co. Ltd
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 87 of 2012
- Procedural Posture
- Ruling / Objection to Admissibility of Witnesses at Hearing
- Outcome
- Objection dismissed; directors or former directors may testify.
- Judges
- OA Angote
- Legal Topics
- Competence of Witnesses, Company Directors Testimony, Lifting Corporate Veil
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kyalo Tuta (Suing as the legal representative of the Estate of Wanza Tuta – Deceased)
Plaintiff
Tutus Wambua Ngoloma
Defendant
Dominic Mutune Nthenge
Defendant
Mwea Farmers Co. Ltd
Defendant
Procedural Posture
Ruling / Objection to Admissibility of Witnesses at Hearing
Legal Issues
- 1 Whether directors or former directors of a company are competent and compellable witnesses against the company.
- 2 Whether the law prohibits directors from testifying against their company.
Ratio Decidendi
The court held that directors or former directors of a company are not among the persons rendered incompetent as witnesses by the Evidence Act. There is no statutory or case law barring directors from testifying against their company. The objection by the Defendants was unsupported by law or precedent. The court found that the testimony of such witnesses is admissible and relevant to the issues in dispute, particularly regarding the allocation of shares and land by the 3rd Defendant. Therefore, the directors or former directors are competent and compellable witnesses in this matter.
Court Disposition
Objection dismissed; directors or former directors may testify.
Orders
- The objection to the admissibility of Olive Musyoka and Joseph Mulei as witnesses is dismissed.
- The said witnesses are competent and compellable to testify in this matter.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 87 OF 2012
KYALO TUTA(Suing as the legal representative of the
Estate ofWANZA TUTA – DECEASED)...........PLAINTIFF
VERSUS
TUTUS WAMBUA NGOLOMA................1ST DEFENDANT
DOMINIC MUTUNE NTHENGE..............2ND DEFENDANT
MWEA FARMERS CO. LTD...................3RD DEFENDANT
RULING
1. When this matter came up for hearing, the Defendants’ advocate objected to the calling of Olive Musyoka and Joseph Mulei as Plaintiff’s witnesses.
2. According to the Defendants’ counsel, the said witnesses are Directors of the 3rd Defendant, and cannot therefore testify against the 3rd Defendant.
3. The Plaintiff’s advocate’s position is that the said persons are competent witnesses and can testify as against the company.
4. Although there was no evidence placed before me to show that indeed the said witnesses are the 3rd Defendant’s Director, I shall address the issue of whether the said witnesses can testify against the 3rd Defendant even if they are Directors in the said company.
5. According to the principles expounded in the well known case of Saloman vs. Saloman & Co. Ltd (1897) AC 22 HL, a company is an independent person with rights and liabilities appropriate to itself.
6. The decision in Saloman(supra) protects shareholders’ private assets and provides a method of limitation of liability which is acceptable in company law, with various exceptions. The various exceptions to the rule allows for the “lifting of the veil” of the company in certain circumstances.
7. The Plaintiff has averred in the Plaint that she bought shares in the 3rd Defendant in 1984 and was entitled to 30 acres of land; that the 3rd Defendant allocated her land to the 1st Defendant and that the former officials of the company has refuted the claims of the 1st Defendant.
8. From the pleadings, the witnesses that the Plaintiff is calling, who are either the Directors of the 3rd Defendant or former Directors, is meant to assist the court in establishing what actually transpired in respect to the shares that the Plaintiff claims she bought from the 3rd Defendant.
9. Directors of a company are not amongst the people who are not competent witnesses pursuant to the provisions of Chapter V of the Evidence Act.
10. Indeed, the Defendants’ counsel did not cite any law which provides that a Director of a company is not competent to be a witness against the company (See the case ofClay City Developers Limited vs. The Chief Magistrate’s Court & Others [2014] eKLR).
11. In the circumstances, the former or current Directors of the 3rd Defendant are competent and compellable witnesses in this matter and can testify in the matter.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 23RD DAY OF NOVEMBER, 2017.
O.A. ANGOTE
JUDGE