[2024] KEELC 4567 (KLR)
The court held that while it is not mandatory for a witness to be an employee of the party, substitution is allowed if the original witness is unavailable, provided the new witness is acquainted with the facts. The court found no record of dismissal of the main suit and allowed the substitution of Saleh Jackline for...
Source-derived case information.
- Citation
- [2024] KEELC 4567 (KLR)
- Parties
- Plaintiff: Mwananchi Credit Limited; Defendant: Caroline Nyakerario Rioki; Defendant: Qmacs Realtors Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E001 of 2023
- Procedural Posture
- Environment and Land Case / Interlocutory Application Ruling
- Outcome
- Application for substitution of witness allowed with limitations.
- Judges
- JM Kamau
- Legal Topics
- Witness Substitution, Formal Proof, Counterclaim Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwananchi Credit Limited
Plaintiff
Caroline Nyakerario Rioki
Defendant
Qmacs Realtors Limited
Defendant
Procedural Posture
Environment and Land Case / Interlocutory Application Ruling
Legal Issues
- 1 Whether the plaintiff can substitute its intended witness after the original witness left employment.
- 2 Whether the substituted witness must be an employee of the plaintiff.
- 3 Scope of testimony permitted for the substituted witness in light of the interlocutory judgment on the counterclaim.
Ratio Decidendi
The court held that while it is not mandatory for a witness to be an employee of the party, substitution is allowed if the original witness is unavailable, provided the new witness is acquainted with the facts. The court found no record of dismissal of the main suit and allowed the substitution of Saleh Jackline for Sylvia Njoroge as the plaintiff's witness, restricting her testimony to the main suit and defence, and excluding the counterclaim, which had already been granted interlocutory judgment and was pending only formal proof.
Court Disposition
Application for substitution of witness allowed with limitations.
Orders
- Ms. Saleh Jackline is substituted for Sylvia Wanjiru Njoroge as the plaintiff's witness.
- Ms. Saleh Jackline to record a new witness statement limited to the main suit and defence, excluding the counterclaim.
Full Case Text
Judgment text and source record
20 paragraphs
Mwananchi Credit Limited v Rioki & another (Environment & Land Case E001 of 2023) [2024] KEELC 4567 (KLR) (9 May 2024) (Ruling)
Neutral citation: [2024] KEELC 4567 (KLR)
Republic of Kenya
In the Environment and Land Court at Nyamira
Environment & Land Case E001 of 2023
JM Kamau, J
May 9, 2024
Between
Mwananchi Credit Limited
Plaintiff
and
Caroline Nyakerario Rioki
1st Defendant
Qmacs Realtors Limited
2nd Defendant
Ruling
1. The Application dated 23/4/2024 seeks for the witness statement of one Sylvia Njoroge to be substituted with one of Sale Jackline on the ground that Sylvia Njoroge has since left the employment of the Plaintiff herein. The said Sylvia Njoroge is said to have been the head of the Plaintiff’s legal department and that she cannot now testify on behalf of the Plaintiff.
2. Whereas I agree that it may be necessary to have another witness who works with the Plaintiff to testify on behalf of the institution, I do not agree with the intended witness, Saleh Jackline when she says that ‘‘….the said witness has recently left employment and therefore cannot testify on behalf of the plaintiff……’’.A witness does not necessarily have to be an employee of the institution (party). The witness only needs to be acquainted with the facts of the case. Either of the two can testify because the documents in the custody of the party are intact and they speak volumes. The former employee is a better witness but there are circumstances that would make the party uncomfortable such as the reasons for the earlier employee leaving employment, how he was treated by his former employer, his relationship with the institution, how he left employment, and the time thereafter just to mention a few. He could also be unwilling to have anything to do with or even any memories of the past employment. Another reason could the cost of bringing his to court or to the office to sign documents such as witness statement and/or Affidavit.
3. It might be that he is also not traceable. Any of these cases may be applicable in this case. However, what statement is Saleh Jackline coming to sign. The Defendant’s Request for Interlocutory Judgment in terms of the counterclaim was granted on 6/2/2024. What remains in respect thereof is only formal proof. But the Plaintiff’s case is yet to be heard. The Plaintiff is entitled to prosecute the main suit. Although the 1st Defendant’s Counsel claims that the main suit was dismissed, I do not see any record to that effect. In the premises, I order that the intended witness, Ms. Saleh Jackline be substituted for Sylvia Wanjiru Njoroge as a witness and records another statement which will be limited to the main suit and the Defence thereto but then she should stay clear of the Counter Claim. These are the orders of the court.
RULING DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 9TH DAY OF MAY, 2024. MUGO KAMAUJUDGEIn the presence of: -Court Assistant - BrendaCounsel for the Plaintiff - Ms. SalehCounsel Mr. Mwita for the 1st Defendant