[2020] KEELC 2153 (KLR)
The court held that while the established practice is for witnesses to remain outside the courtroom during the testimony of other witnesses to preserve the independence and credibility of their evidence, a witness who breaches this practice should not be barred from testifying. Instead, the fact of their presence in...
Source-derived case information.
- Citation
- [2020] KEELC 2153 (KLR)
- Parties
- Plaintiff: Mary Ngonyo Kiume; Defendant: Charles Muisyo David; Defendant: Winfred Wanjiku Maina; Defendant: Machakos County Land Registrar; Applicant: Exams Housing Co-operative Society Ltd
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 98 of 2018
- Procedural Posture
- Land and Environment Case / Ruling on Objection to Witness Testimony
- Outcome
- Objection dismissed; PW2 allowed to testify.
- Judges
- OA Angote
- Legal Topics
- Witness Exclusion, Credibility of Evidence, Trial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Ngonyo Kiume
Plaintiff
Charles Muisyo David
Defendant
Winfred Wanjiku Maina
Defendant
Machakos County Land Registrar
Defendant
Exams Housing Co-operative Society Ltd
Applicant
Procedural Posture
Land and Environment Case / Ruling on Objection to Witness Testimony
Legal Issues
- 1 Whether a witness who was present in court during another witness's testimony should be allowed to testify.
- 2 What effect the presence of a witness in court during another's testimony has on the weight of their evidence.
Ratio Decidendi
The court held that while the established practice is for witnesses to remain outside the courtroom during the testimony of other witnesses to preserve the independence and credibility of their evidence, a witness who breaches this practice should not be barred from testifying. Instead, the fact of their presence in court during another's testimony goes to the weight to be attached to their evidence. The court relied on the precedents set in Waithaka & Another vs. Republic and John Oroo Oyioka & Another vs. IEBC, which both held that the presence of a witness in court does not render their evidence inadmissible but may diminish its probative value. Accordingly, PW2 is permitted to...
Court Disposition
Objection dismissed; PW2 allowed to testify.
Orders
- PW2 is permitted to testify in this matter.
- Costs of the objection shall be in the cause.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 98 OF 2018
MARY NGONYO KIUME..............................................................................................PLAINTIFF
VERSUS
CHARLES MUISYO DAVID................................................................................1ST DEFENDANT
WINFRED WANJIKU MAINA..........................................................................2ND DEFENDANT
MACHAKOS COUNTY LAND REGISTRAR..................................................3RD DEFENDANT
AND
EXAMS HOUSING CO-OPERATIVESOCIETY LTD.....PROPOSED INTERESTED PARTY
RULING
1. This matter proceeded for hearing on 5th March, 2020 when the Plaintiff, PW1, testified. After his testimony, the Defendants’ advocate informed the court that the Plaintiff’s witness, PW2, was in court throughout the period when the Plaintiff was testifying.
2. The Defendants’ counsel raised an objection to the effect that sound practice demands that a witness should not sit in court while another witness, or a party to the suit, is testifying. Counsel argued that such a witness will not be credible because his evidence will be geared towards filling up the gaps left by the initial witness.
3. On his part, the Plaintiff’s advocate submitted that he had told PW2 to sit outside the court room while PW1 was testifying; that he was surprised that PW2 never went outside the court room as directed and that PW2 had recorded a statement whose contents the Defence knows. This Ruling is therefore in respect to the objection raised by the Defence on whether PW2 can testify in this matter.
4. Indeed, as correctly argued by the Defence, the practice of this court requires a witness to sit outside the court room while a party or another witness is testifying. This practice is meant to assist the court and the parties to assess the credibility of the evidence that is given by each witness, independent of the evidence of the other witness. It is only when this practice is upheld and observed that the principle of corroborative evidence, which is key in a trial, would be helpful to the court in arriving at a fair decision.
5. But can such a witness be locked out completely from testifying. This issue was considered by the court in the case of Waithaka & Another vs. Republic (1972) E.A 184in which the court held that the evidence of such a witness should be taken and the fact of his or her presence in court would then go to the weight to be attached to such evidence.
6. The Waithaka (supra) decision was adopted by Sitati J. in John Oroo Oyioka & Another vs. Independent Electoral Boundaries Commission & 2 Others (2013) eKLRas follows:
“I entirely agree with the view held by the court in the Waithaka case and hold that the presence of Atandi Machuka in court during the hearing of the evidence of the Petitioner in EP No. 2 of 2013 shall only affect the weight to be placed on that evidence by this court.
7. Just like in the Waithakaand John Oroo (supra) cases, I am of the same view that a witness cannot be locked out from testing just because he was in court when the Plaintiff was testifying. However, the weight to be placed on his testimony will be less than the weight that would have been placed on the evidence that he would have given had he not sat in court while the Plaintiff, or any other witness was testifying.
8. For those reasons, I shall allow PW2 to testify in this matter. The costs of the objection shall be in the cause.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 12TH DAY OF JUNE, 2020.
O.A. ANGOTE
JUDGE