[2019] KEELC 16 (KLR)
The court found that the 1st defendant did not have a meaningful opportunity to cross-examine the interested party, as the only question posed was about the witness's residence. In the interest of justice and in accordance with Section 146(4) of the Evidence Act and Article 159 of the Constitution, the court held...
Source-derived case information.
- Citation
- [2019] KEELC 16 (KLR)
- Parties
- Plaintiff: Ng’olua Mwaine; Defendant: Alexander Kamathi M’Ithili; Defendant: Betha Gacheri
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 99 of 2003
- Procedural Posture
- Land and Property Case / Ruling on Oral Application to Recall Witness for Cross Examination
- Outcome
- Application to recall the interested party for cross-examination by counsel for the 1st defendant is allowed.
- Legal Topics
- Recall of Witness, Cross Examination Rights, Fair Hearing, Evidence Act Section 146, Constitutional Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ng’olua Mwaine
Plaintiff
Alexander Kamathi M’Ithili
Defendant
Betha Gacheri
Defendant
Procedural Posture
Land and Property Case / Ruling on Oral Application to Recall Witness for Cross Examination
Legal Issues
- 1 Whether the 1st defendant should be allowed to recall the interested party for further cross-examination.
- 2 Whether the initial cross-examination satisfied the requirements of a fair hearing.
Ratio Decidendi
The court found that the 1st defendant did not have a meaningful opportunity to cross-examine the interested party, as the only question posed was about the witness's residence. In the interest of justice and in accordance with Section 146(4) of the Evidence Act and Article 159 of the Constitution, the court held that it is appropriate to allow the 1st defendant to recall the interested party for further cross-examination. This ensures that all parties have a fair opportunity to be heard and to test the evidence presented against them.
Court Disposition
Application to recall the interested party for cross-examination by counsel for the 1st defendant is allowed.
Orders
- The interested party is to be recalled for cross-examination by counsel for the 1st defendant only.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC CASE NO. 99 OF 2003
NG’OLUA MWAINE ……......................................…. PLAINTIFF
VERSUS
ALEXANDER KAMATHI M’ITHILI...................1ST DEFENDANT
BETHA GACHERI ........................................... 2ND DEFENDANT
RULING
1. On 30/7/2019 Mr. Thangicia counsel for the 1st defendant made an oral application to recall the 2nd defendant/interested party for cross- examination as the 1st defendant did not have a chance to cross examine him. The proceedings herein indicate that the interested party testified on 19/3/2019 where the cross examination done by the defendant went on as follows; “where do you stay?” nothing more nothing less.
2. The law provides for the recalling of witnesses under Section 146(4) of the Evidence Act Cap. 80where it is stipulated that:-
“The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so the parties have the right of further cross-examination and re-examination respectively.”
3. Article 159 of the Constitutionstipulates that justice shall be done to all. One of the ways to ensure this is done is by giving each and every party an opportunity to be heard including according such parties a chance to conduct cross-examination of witnesses. A perusal of the record clearly reveals that the 1st defendant did not really cross examine the interested party as he simply inquired where the latter stays.
4. Consequently, I do allow the application to recall the interested party for cross examination by the counsel for 1st defendant only.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 10TH DECEMBER, 2019 IN THE PRESENCE OF:-
C/A: Kananu
Kirimi Muthuri holding brief for Kirimi Nginaru for plaintiff
Thangicia for 1st defendant
Plaintiff
1st defendant
HON. LUCY. N. MBUGUA
ELC JUDGE