[2025] KEHC 6317 (KLR)
The court determined that it could not proceed to judgment because the plaintiff's witness statement, which formed the basis of the formal proof hearing, was not filed in the court record nor served on the defendants. This omission undermines the integrity of the proceedings and the right to a fair hearing. The...
Source-derived case information.
- Citation
- [2025] KEHC 6317 (KLR)
- Parties
- Plaintiff: Justina Nyambu; Plaintiff: Vishal Shah; Defendant: Gold Avenue Africa Limited; Defendant: Samuel Kuria; Defendant: Mercy Wambui
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 011 of 2023
- Procedural Posture
- Civil Case / Directions
- Outcome
- directions issued; matter stood over for mention
- Judges
- RC Rutto
- Legal Topics
- Filing of Witness Statements, Formal Proof Hearing, Court Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Justina Nyambu
Plaintiff
Vishal Shah
Plaintiff
Gold Avenue Africa Limited
Defendant
Samuel Kuria
Defendant
Mercy Wambui
Defendant
Procedural Posture
Civil Case / Directions
Legal Issues
- 1 Whether the court can proceed to judgment where the plaintiff's witness statement is missing from the court record.
- 2 What steps should be taken when a key evidentiary document is not filed or served.
Ratio Decidendi
The court determined that it could not proceed to judgment because the plaintiff's witness statement, which formed the basis of the formal proof hearing, was not filed in the court record nor served on the defendants. This omission undermines the integrity of the proceedings and the right to a fair hearing. The court therefore directed the plaintiff to file the missing witness statement within seven days to regularize the record, after which the matter would be mentioned for further directions. This approach ensures procedural fairness and upholds the principles of natural justice.
Court Disposition
directions issued; matter stood over for mention
Orders
- The plaintiff shall file the witness statement dated 27th February 2023 within seven days.
- The matter shall be mentioned before the Deputy Registrar of the Tax and Commercial Division for further directions on 3rd June 2025.
Full Case Text
Judgment text and source record
26 paragraphs
Nyambu & another v Gold Avenue Africa Limited & 2 others (Civil Case 011 of 2023) [2025] KEHC 6317 (KLR) (Commercial and Tax) (16 May 2025) (Directions)
Neutral citation: [2025] KEHC 6317 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts)
Commercial and Tax
Civil Case 011 of 2023
RC Rutto, J
May 16, 2025
Between
Justina Nyambu
1st Plaintiff
Vishal Shah
2nd Plaintiff
and
Gold Avenue Africa Limited
1st Defendant
Samuel Kuria
2nd Defendant
Mercy Wambui
3rd Defendant
Directions
1. This matter proceeded to a formal proof hearing on 16th October 2024, during which the Plaintiff testified and adopted a Witness Statement dated 27th February 2023 as her evidence in chief. Following the hearing, the matter was set for judgment. However, as I prepared to write the judgment and upon review, it became apparent that the said Witness Statement does not appear to have been filed, as it is absent from both the physical court file and the CTS system.
2. Additionally, a check of Nairobi HCCOMMMisc E153 of 2023, the case number previously misregistered as per the Plaintiff’s letter dated 14th March 2023, confirmed that the Witness Statement is not among the documents filed therein. Furthermore, an examination of the Affidavit of Service sworn on 26th February 2024 establishes that the Witness Statement was never part of the documents served upon the Defendants.
3. Given that the hearing was conducted based on this Witness Statement, I am unable to proceed with the writing and delivery of judgment as initially intended.
4. I therefore direct that the Plaintiff do file the Witness Statement dated 27th February 2023 within seven (7) days. Thereafter, the matter shall be mentioned before the Deputy Registrar of the Tax and Commercial Division and further directions. Mention on 3rd June 2025. Orders accordingly.
DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 16TH DAY OF MAY, 2025. RHODA RUTTOJUDGEIn the presence of;.......................for Plaintiff.......................for Defendant