[2018] KEELRC 658 (KLR)
The court found that although the plaintiff had already testified at length and was cross-examined and re-examined, the relationship between the parties (mother and son) made the observation of witness demeanor important for a just determination. The court also noted that the plaintiff's case was never formally...
Source-derived case information.
- Citation
- [2018] KEELRC 658 (KLR)
- Parties
- Plaintiff: Paul Kiriinya; Defendant: Delfina Kathiri
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 44 of 2012
- Procedural Posture
- Land and Property Suit / Ruling on Application to Start Afresh
- Outcome
- Application to start the case afresh allowed.
- Legal Topics
- Fresh Hearing, Judicial Discretion, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Kiriinya
Plaintiff
Delfina Kathiri
Defendant
Procedural Posture
Land and Property Suit / Ruling on Application to Start Afresh
Legal Issues
- 1 Whether the case should start afresh after partial hearing and change of presiding judge.
- 2 Whether the interests of justice require the court to observe the demeanor of witnesses in a family dispute.
- 3 Whether judicial time and prior proceedings preclude a fresh hearing.
Ratio Decidendi
The court found that although the plaintiff had already testified at length and was cross-examined and re-examined, the relationship between the parties (mother and son) made the observation of witness demeanor important for a just determination. The court also noted that the plaintiff's case was never formally closed, and directions on whether the case should start afresh had not been taken since the new judge took over. Given the emotive nature of the dispute and the absence of closure of the plaintiff's case, the court exercised its discretion to allow the application for the case to start afresh, ensuring that justice is not only done but seen to be done.
Court Disposition
Application to start the case afresh allowed.
Orders
- The case shall start afresh.
- The hearing is to proceed on a priority basis.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 44 OF 2012
PAUL KIRIINYA............................ PLAINTIFF
VERSUS
DELFINA KATHIRI....................DEFENDANT
RULING
1. This is a ruling in respect of the application by plaintiff’s counsel for the case to start afresh. Plaintiff testified on 22. 1.2014 and was cross examined and re-examined on 17. 3.2014. No other testimony has ever been taken.
2. On 26. 7.2018 when case was listed for defence hearing counsel for plaintiff stated that in the interest of justice it was necessary for the case to start afresh averring that the matter is very emotive involving a mother and son and that it is necessary to see the demeanor of the witness.
3. Defence counsel on the other hand opposes the application for case to start afresh averring that the proceedings of Judge Njoroge are not in doubt, that the plaintiff had testified at length and was duly cross examined and re-examined and that the court is to follow the law and facts and not emotions.
4. I have perused the court record and I find that plaintiff’s evidence was quite lengthy, so was the cross examination and re-examination. As submitted by defence counsel, judicial time is precious. Time is not an unlimited resource. I must also state that I am able to discern the hand written record of my brother Judge Njoroge. However, the fact that plaintiff gave lengthy testimony should not be a bar to have the case start afresh.
5. I note that the relationship of the parties is that of a son and a mother. I agree with plaintiff’s counsel that the demeanor of witnesses in such a situation may be necessary.
6. I also note that the orders of 17. 7.2018 giving a defence hearing date on 26. 7.2018 must have been in error because plaintiff’s case was never closed. If anything, the court had even allowed plaintiff to substitute a witness in place of one who had passed on.
7. Finally, I find that since I took over the matter on 11. 10. 2017, directions were never taken as to whether case should start denovo or not. Currently, the court’s country wide are fast tracking cases which are over five years old. This being a 2012 matter, it falls in this bracket.
8. The defence need not fear that the matter will drag on as the court will endeavor to hear it on priority basis.
9. In the circumstances, I allow the application for case to start afresh. Since the court had indicated that case should proceed then the hearing is to kick off.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 8TH NOVEMBER, 2018 IN THE PRESENCE OF:-
C/A: Janet
C.P Mbaabu for plaintiff
Kithinji for defendant
Plaintiff
Defendant
HON. LUCY. N. MBUGUA
ELC JUDGE