[2010] KEHC 3139 (KLR)
The court found that the issues raised in the affidavits could not be satisfactorily resolved without oral evidence and cross-examination. Proceeding solely on affidavit evidence would not address the interests of the parties adequately. Therefore, the court directed that oral evidence be adduced by all parties,...
Source-derived case information.
- Citation
- [2010] KEHC 3139 (KLR)
- Parties
- Applicant: Mutuku Mutinga; Applicant: Gloria Jean Mutingaa; Respondent: Joreth Limited; Respondent: Thome Farmers No.5 Limited; Respondent: Justin Miano Kabuiko; Respondent: Rebeca Njeri Miano
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 193 of 2009
- Procedural Posture
- Civil Case / Interlocutory Ruling on Procedure Before Hearing of Originating Summons
- Outcome
- No substantive ruling; matter to proceed by oral evidence.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Adverse Possession, Originating Summons Procedure, Oral Evidence Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mutuku Mutinga
Applicant
Gloria Jean Mutingaa
Applicant
Joreth Limited
Respondent
Thome Farmers No.5 Limited
Respondent
Justin Miano Kabuiko
Respondent
Rebeca Njeri Miano
Respondent
Procedural Posture
Civil Case / Interlocutory Ruling on Procedure Before Hearing of Originating Summons
Legal Issues
- 1 Whether the issues raised in the affidavits can be resolved without oral evidence.
- 2 Whether the court should proceed on affidavit evidence or require oral testimony.
Ratio Decidendi
The court found that the issues raised in the affidavits could not be satisfactorily resolved without oral evidence and cross-examination. Proceeding solely on affidavit evidence would not address the interests of the parties adequately. Therefore, the court directed that oral evidence be adduced by all parties, with the possibility of using the already filed submissions as final submissions after the oral evidence is recorded.
Court Disposition
No substantive ruling; matter to proceed by oral evidence.
Orders
- Oral evidence shall be adduced by all parties on a date to be agreed upon.
- Submissions already filed may be used as final submissions after oral evidence is recorded.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Case 193 of 2009
MUTUKU MUTINGA ………………………………………. 1ST APPLICANT
GLORIA JEAN MUTINGAA ………………………..…… 2ND APPLICANT
AND
JORETH LIMITED .…………….….……..…..…..…. 1st RESPONDENT
THOME FARMERS NO.5 LIMITED ………..…..… 2ND RESPONDENT
JUSTIN MIANO KABUIKO …………………..……… 3RD RESPONDENT
REBECA NJERI MIANO ………………………....…. 4TH RESPONDENT
RULING
The applicants herein instituted a suit by way of Originating Summons under Order 36 rule 3D of the Civil Procedure Rules against the 1st respondent claiming ownership of some properties by way of adverse possession. Subsequently, the Originating Summons was amended to include the 2nd, 3rd and 4th respondents.
This claim was resisted by all the respondents herein who filed affidavits in answer thereto.
I took up the matter from my predecessors after some directions had been given to the effect that the parties address the Originating Summons by way of affidavit evidence.
Thereafter, the court made orders that written submissions be filed within a specified period. When the said orders were being made, there was not on record an application for directions by any of the parties herein as provided under the rules. (see Order XXXVI rule 8A).
The order was not shown to be by consent but the counsel appearing for the respective parties herein having filed submissions in compliance with the said order, must have consented thereto.
I have read the record before me. With profound respect to my predecessor and counsel appearing herein, I have not been able to resolve the issues by reading and/or analyzing the contents of the affidavits herein. I have noted with respect that there are issues that have been raised in the affidavits which require oral evidence to be adduced and subjected to cross examination so that the interests of the parties herein are properly addressed.
If I were to proceed by way of affidavit evidence as recorded in the order of 27th October, 2009, this may not resolve the issues. Accordingly, I find that no substantive ruling can flow from the material before me as at this point. I direct that oral evidence shall be adduced by all parties herein on a date to be agreed upon and if need be, the submissions already filed may be used as the final submissions after such evidence has been recorded.
Orders accordingly.
Dated, signed and delivered atNairobithis15th day of April, 2010.
A. MBOGHOLI MSAGHA
JUDGE