[2024] KEELC 1347 (KLR)
The court found that even if the evidence of the plaintiffs is similar, Mr. Omaiyo, who is now from a different firm and does not represent the 7th plaintiff, is entitled to cross-examine the 7th plaintiff. The court emphasized its discretion under Section 161 of the Evidence Act to allow cross-examination of one’s...
Source-derived case information.
- Citation
- [2024] KEELC 1347 (KLR)
- Parties
- Plaintiff: Francis Ngugi Mburu; Plaintiff: Nyamweya Iries Abuya; Plaintiff: Julius Mwaniki Waititu; Plaintiff: Domestic Muindi Mburu; Plaintiff: Esther Wangui Kamau; Plaintiff: Silas Ondicho Manu; Plaintiff: Geoffrey Mwaura Kaigai; Defendant: Zucchini Holdings Limited; Defendant: Minto Travels Limited; Defendant: Nerifa Holdings Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 91 of 2010
- Procedural Posture
- Environment and Land Case / Ruling on Objection During Cross Examination
- Outcome
- Objection dismissed with conditions.
- Judges
- LN Mbugua
- Legal Topics
- Cross Examination, Witness Examination, Advocate Conflict, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Ngugi Mburu
Plaintiff
Nyamweya Iries Abuya
Plaintiff
Julius Mwaniki Waititu
Plaintiff
Domestic Muindi Mburu
Plaintiff
Esther Wangui Kamau
Plaintiff
Silas Ondicho Manu
Plaintiff
Geoffrey Mwaura Kaigai
Plaintiff
Zucchini Holdings Limited
Defendant
Minto Travels Limited
Defendant
Nerifa Holdings Limited
Defendant
Procedural Posture
Environment and Land Case / Ruling on Objection During Cross Examination
Legal Issues
- 1 Whether counsel for the plaintiffs, Mr. Omaiyo, can cross-examine the 7th plaintiff who is now acting in person.
- 2 Whether the preparation of pleadings by a previous firm precludes cross-examination by a different advocate.
- 3 Whether the court has discretion to allow cross-examination of one’s own witness.
Ratio Decidendi
The court found that even if the evidence of the plaintiffs is similar, Mr. Omaiyo, who is now from a different firm and does not represent the 7th plaintiff, is entitled to cross-examine the 7th plaintiff. The court emphasized its discretion under Section 161 of the Evidence Act to allow cross-examination of one’s own witness. The objection by defence counsel was dismissed, with the caveat that Mr. Omaiyo must not ask leading questions to the 7th plaintiff. The court noted that the adverse party would still have the opportunity to test the veracity, credibility, and accuracy of the 7th plaintiff’s evidence. The scenario would have been different if the defence had commenced...
Court Disposition
Objection dismissed with conditions.
Orders
- The objection raised by Mr. Munge is dismissed.
- Mr. Omaiyo is permitted to cross-examine the 7th plaintiff but shall not ask leading questions.
Full Case Text
Judgment text and source record
35 paragraphs
Mburu & 6 others v Zucchini Holdings Limited & 2 others (Environment & Land Case 91 of 2010) [2024] KEELC 1347 (KLR) (12 March 2024) (Ruling)
Neutral citation: [2024] KEELC 1347 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 91 of 2010
LN Mbugua, J
March 12, 2024
Between
Francis Ngugi Mburu
1st Plaintiff
Nyamweya Iries Abuya
2nd Plaintiff
Julius Mwaniki Waititu
3rd Plaintiff
Domestic Muindi Mburu
4th Plaintiff
Esther Wangui Kamau
5th Plaintiff
Silas Ondicho Manu
6th Plaintiff
Geoffrey Mwaura Kaigai
7th Plaintiff
and
Zucchini Holdings Limited
1st Defendant
Minto Travels Limited
2nd Defendant
Nerifa Holdings Limited
3rd Defendant
Ruling
1. The 7th plaintiff is acting in person. He gave his evidence in chief on 1. 2.2024. Mr. Omaiyo for the rest of the plaintiffs then embarked on cross examining the said party when defence counsel raised an objection averring that plaintiff’s counsel prepared all the documents; hence in essence, 7th plaintiff is their client. Thus Mr. Omaiyo should not proceed to cross-examine the 7th plaintiff.
2. In opposition, Mr. Omaiyo stated that he is in a different firm of advocate from the one which prepared the pleadings and statements of the plaintiffs including the 7th plaintiff.
3. It is the finding of this court that even if the plaintiffs evidence is similar, Mr. Omaiyo is entitled to cross examine the witness (7th plaintiff) who is no longer his client. After all, the court even has discretion to allow cross examination of one’s own witness; See Section 161 of the Evidence Act. The adverse party (read Mr Munge’s clients) will have an opportunity to put forth questions to 7th plaintiff to test the veracity, credibility and accuracy of his evidence. It would have been a different scenario if Mr. Munge had commenced cross examination before Mr. Omaiyo.
4. In the circumstances the objection raised by Mr. Munge is hereby dismissed with a rider that Mr. Omaiyo will not ask leading questions to the 7th plaintiff.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12THDAY OF MARCH, 2024 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Omaiyo for Plaintiff and Decree Holder 7th PlaintiffOpole holding brief for Munge for 3rd DefendantCourt assistant: Judith