[2021] KEELC 3675 (KLR)
The court found that the objection by the 5th defendant was without merit because the directions allowing the Land Registrar to testify and produce documents had already been given in the presence of all parties and had not been set aside or reviewed. The plaintiff had not closed its case and was entitled to call...
Source-derived case information.
- Citation
- [2021] KEELC 3675 (KLR)
- Parties
- Plaintiff: Muvokanza Limited; Defendant: Nedmart Falls Kenya Limited; Defendant: Sylvester Kyalo Mutua; Defendant: Jamii Bora Bank Limited; Defendant: Muganda Wasula t/a Keysian Auctioneers; Defendant: The Chief Registrar of Titles
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1180 of 2015
- Procedural Posture
- Land and Property Case / Interlocutory Objection to Witness Testimony
- Outcome
- Objection dismissed; Land Registrar to testify.
- Judges
- LC Komingoi
- Legal Topics
- Admissibility of Evidence, Witness Testimony, Land Registrar Role
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muvokanza Limited
Plaintiff
Nedmart Falls Kenya Limited
Defendant
Sylvester Kyalo Mutua
Defendant
Jamii Bora Bank Limited
Defendant
Muganda Wasula t/a Keysian Auctioneers
Defendant
The Chief Registrar of Titles
Defendant
Procedural Posture
Land and Property Case / Interlocutory Objection to Witness Testimony
Legal Issues
- 1 Whether the Land Registrar can be called as a witness by the plaintiff to produce documents supplied by the Land Registry.
- 2 Whether the objection by the 5th defendant to the Land Registrar's testimony is merited.
Ratio Decidendi
The court found that the objection by the 5th defendant was without merit because the directions allowing the Land Registrar to testify and produce documents had already been given in the presence of all parties and had not been set aside or reviewed. The plaintiff had not closed its case and was entitled to call the Land Registrar as a witness to produce the relevant documents. The court emphasized that no prejudice would be occasioned to the defendants, as they would have the opportunity to cross-examine the witness. Therefore, the objection was dismissed, and the Land Registrar was permitted to testify.
Court Disposition
Objection dismissed; Land Registrar to testify.
Orders
- The objection by the 5th defendant is dismissed.
- The Land Registrar shall testify and produce the documents stated on the summons dated 3rd September 2020.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CASE NO. 1180 OF 2015
MUVOKANZA LIMITED................................................................................PLAINTIFF
VERSUS
NEDMART FALLS KENYA LIMITED................................................1ST DEFENDANT
SYLVESTER KYALO MUTUA............................................................2ND DEFENDANT
JAMII BORA BANK LIMITED...........................................................3RD DEFENDANT
MUGANDA WASULA T/A
KEYSIAN AUCTIONEERS..................................................................4TH DEFENDANT
THE CHIEF REGISTRAR OF TITLES...............................................5TH DEFENDANT
DIRECTIONS
1. Mr. Motari for the 5th defendant raises an objection to the Land Registrar being called as a witness by the plaintiff. The grounds are that the 5th defendant is a party to these proceedings who has filed a defence and bundles of documents. Mr. Motari’s submissions have been adopted by Mr. Rapando, Mr. Awuor and Mr. Akello for the 1st, 2nd and 3rd defendants respectively.
2. Mr. Omondi for the plaintiff opposes the objection on the grounds that the Land Registrar is the best person to produce the documents supplied to the plaintiff by that office and identified by P.W.2 (Mumo Mwendwa).
3. I have considered the rival submissions. The issue is whether this objection is merited.
4. On the 29th September 2020, Gildad Karani, a Land Registrar attached to the office of the Chief Land Registrar was put on the witness stand. She had attended court pursuant to summons dated 3rd September 2020. She did not complete her testimony owing to the objection by counsel for the defendants that she had not recorded a witness statement. Due to this objection, the court directed the witness to be stood down so that she could record a witness statement on the documents to be produced. Consequently, leave was granted to the plaintiff to file the said witness statement and an additional list of documents.
5. These directions were given in the presence of all advocates. The same have not been set aside and/or reviewed. The instant objection is misplaced and the same is overruled. The plaintiff has not closed its case. It should be given an opportunity to present its case in the best way possible.
6. The Land Registrar should testify and produce the documents stated on the summons dated 3rd September 2020. No prejudice will be occasioned to the defendants as they will have an opportunity to cross examine the witness.
7. I find no merit in the objection by the 5th defendant and the same is dismissed.
It is so ordered.
Dated, signed and delivered in Nairobi on this 15th day of April 2021.
……………………….
L. KOMINGOI
JUDGE
In the presence of:-
Mr. Omondi for the Plaintiff
Mr. Rapando for the 1st Defendant and holding brief for Mr. Awuor for the 2nd Defendant
No appearance for the 3rd, 4th and 5th Defendants
Phyllis Court Assistant.