[2016] KEHC 1485 (KLR)
Despite the defendant's failure to file the additional witness statement earlier and the lack of a satisfactory explanation for the delay, the court found that, in the interest of justice and pursuant to Article 159(2)(d) of the Constitution, the defendant should be granted leave to file the statement. The court...
Source-derived case information.
- Citation
- [2016] KEHC 1485 (KLR)
- Parties
- Plaintiff: Lawrence C. Njeru; Defendant: Hon. Danson Buya Mungatana
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 343 of 2011
- Procedural Posture
- Civil Suit / Ruling on Application to Call Additional Defence Witness After Close of Plaintiff's Case
- Outcome
- Application for leave to call additional defence witness granted.
- Judges
- LM Njuguna
- Legal Topics
- Leave to Call Additional Witness, Pre Trial Compliance, Late Filing of Witness Statements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lawrence C. Njeru
Plaintiff
Hon. Danson Buya Mungatana
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Call Additional Defence Witness After Close of Plaintiff's Case
Legal Issues
- 1 Whether the defendant should be granted leave to call an additional witness after the close of the plaintiff's case.
- 2 Whether the late introduction of the witness prejudices the plaintiff or amounts to an abuse of court process.
Ratio Decidendi
Despite the defendant's failure to file the additional witness statement earlier and the lack of a satisfactory explanation for the delay, the court found that, in the interest of justice and pursuant to Article 159(2)(d) of the Constitution, the defendant should be granted leave to file the statement. The court emphasized that the plaintiff would not suffer prejudice as cross-examination would be allowed, and the overriding objective of the court is to facilitate substantive justice. The court also noted the defendant's participation in pre-trial procedures and the absence of any prior indication of intent to call the additional witness, but ultimately prioritized the need to determine...
Court Disposition
Application for leave to call additional defence witness granted.
Orders
- The defendant is granted leave to file a witness statement for the additional witness within fourteen (14) days from the date of the ruling.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 343 OF 2011
LAWRENCE C. NJERU………………………………………PLAINTIFF
VERSUS
HON. DANSON BUYA MUNGATANA……………………..DEFENDANT
R U L I N G
1. This matter is part heard. The Plaintiff’s case has been heard and closed. When this matter came up for defence hearing on 26th September, 2016, the Defendant’s testimony was taken and at the end of it, learned counsel for the Defendant intimated that he would have closed the defense case but he had instructions to call a further witness. It was argued that no prejudice would be suffered by the Plaintiff since counsel for the Plaintiff will have the chance to cross examine that witness.
2. That application was objected to and was termed as a plot to waste courts time. It was argued that the defence counsel knew of the existence of that witness at the time of preparing the case and it was unclear why he opted to bring him this late in the day. That bringing the witness at this stage amounted to bringing in new evidence and it must have been an afterthought.
3. Having heard the arguments by both parties, I wholly concur with the Plaintiff that the defendant all along knew about this witness that he intend to call. The Defendant also participated in the pre-trial conference under Order 11 and on the 31st August, 2015, his advocate was present in court and he informed the court that he had complied with Order 11. This court has not been told why the statement for this witness had not been filed in court earlier.
4. However, in the interest of justice and in line with the provisions of Article 159 (2) (d) of the Constitution of Kenya 2010, the defendant is hereby granted leave to file witness statement for the additional witness. The same to be filed with fourteen (14) days from today.
Dated, signed and delivered at Nairobi this 17th day of November, 2016.
………………………
L NJUGUNA
JUDGE
In The presence of
………………………………….. for the Plaintiff
………………………………….. for the Defendant.