[2019] KEELC 5061 (KLR)
The court found that the applicant had demonstrated a consistent intention to call the additional witnesses, as evidenced by previous applications for witness summons and references in other witness statements. The substitution of a deceased plaintiff with Mr. Joseph Ndungu Gathondu was necessitated by the death of...
Source-derived case information.
- Citation
- [2019] KEELC 5061 (KLR)
- Parties
- Plaintiff: Rajab Ahmed Karume; Defendant: The Chief Registrar; Defendant: The Attorney General; Defendant: Insurance Training and Education Trust
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 816 of 2012
- Procedural Posture
- Ruling / Application for Leave to File Additional Witness Statements
- Outcome
- application for leave to file additional witness statements allowed
- Legal Topics
- Leave to File Witness Statements, Late Filing of Evidence, Right to Fair Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rajab Ahmed Karume
Plaintiff
The Chief Registrar
Defendant
The Attorney General
Defendant
Insurance Training and Education Trust
Defendant
Procedural Posture
Ruling / Application for Leave to File Additional Witness Statements
Legal Issues
- 1 Whether the plaintiff should be granted leave to file additional witness statements after the commencement of hearing.
- 2 Whether the late filing of witness statements would prejudice the defendants.
- 3 Whether the right to a fair hearing justifies the grant of leave in the circumstances.
Ratio Decidendi
The court found that the applicant had demonstrated a consistent intention to call the additional witnesses, as evidenced by previous applications for witness summons and references in other witness statements. The substitution of a deceased plaintiff with Mr. Joseph Ndungu Gathondu was necessitated by the death of the original plaintiff, and the involvement of the other witnesses was already on record. The court held that the right to a fair hearing should not be denied except in exceptional circumstances and that no prejudice would be occasioned to the other parties by allowing the late filing of the witness statements. Accordingly, the court exercised its discretion to grant leave for...
Court Disposition
application for leave to file additional witness statements allowed
Orders
- Leave is granted to Mr. A.G.N. Kamau to file witness statements of Hassan Lakicha, Advocate, Mr. George Gachihi and Mr. Joseph Ndungu Gathondu.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
ENVIRONMENT & LAND COURT
ELC CASE NO. 816 OF 2012
(AS CONSOLIDATED WITH ELC CASE NO. 47 OF 2010)
RAJAB AHMED KARUME……………….……………………...…PLAINTIFF
VERSUS
THE CHIEF REGISTRAR……………………………………1ST DEFENDANT
THE ATTORNEY GENERAL……………………….……….2ND DEFENDANT
INSURANCE TRAINING AND EDUCATION TRUST…....3RD DEFENDANT
RULING
1. On 7th May, 2019 when this case came up for hearing, Mr. A.G.N. Kamau advocate for Plaintiffs in ELC 47 of 2010 presented his second witness. Immediately after the second witness testified, Mr. A.G.N. Kamau applied for leave to file witness statements in respect t of Mr. George Gachihi, Hassan Lakicha Advocate and Mr. Joseph Ndungu Gathondu. Mr. A.G.N Kamau stated that he could not file the statements in time because he had first to seek leave and that the witnesses were out of town and therefore it took abit of time to have them sign their statements.
2. The application by Mr. A.G.N. Kamau was opposed by Mr. Muchoki counsel for Plaintiff in ELC 816 of 2012 who argued that Mr. A.G.N. Kamau had been given time to file witness statements but that he had failed to do so. Mr. Muchoki urged the Court to proceed with the evidence of the witnesses who had already recorded their statements.
3. Mr. Motari for the 1st and 2nd Defendants in ELC 816 of 2012 opposed Mr. A.G.N. Kamau’s application on the grounds that leave was being sought too late; that no good reason had been shown why statements could not be filed in time and that he did not see the basis upon which Mr. Hassan Lakicha was being called as a witness.
4. On his part, Mr. Ochieng Oduol, Counsel for the third defendant in ELC 816 of 2012 opposed Mr. AGN Kamau’s application on the grounds that Mr. AGN Kamau was seeking to build up his case as hearing went on; that some statements of witnesses in ELC 47 of 2010 were filed seven years after the filing of the suit and that all witness in ELC 816 of 2012 had testified.
5. In answer to the opposition to his application, Mr. AGN Kamau argued that the witnesses whose statements he was seeking to file were mentioned in the statements of other witnesses and that one of the witnesses, Mr. Joseph Ndungu Gathondu was initially one of the Plaintiffs in ELC 47 of 2010 and that he came in to substitute one of the Plaintiffs who had died in order to take care of the interests of the estate of the deceased Thumbi Kariuki.
6. I have considered the application by Mr. AGN Kamau as well as the opposition to the same by Mr. Muchoki, Mr. Motari and Mr. Ochieng Oduol. The only issue for determination is whether Mr. AGN Kamau should be allowed to file the witness statements of the witnesses. I have perused the statements recorded by the witnesses for Plaintiffs in ELC 47 of 2010. There is a statement by one Mahat Adan Abdirahman filed on 6th June, 2017. This witness has mentioned Hassan Lakicha Advocate who is said to have prepared a sale agreement between him and Thumbi Kariuki (now deceased).
7. The other witness whose statement is to be filed is Joseph Ndungu Gathondu. This is the witness who substituted the late Thumbi Kariuki. Thumbi Kariuki had started giving his evidence. He was stood down as he was unwell. He never came back to complete his evidence as he died on 10th October, 2017. The deceased was substituted by Joseph Ndungu Gathondu on 17th May, 2018. George Gachihi is a State Counsel. On 24th May, 2017 Mr. AGN Kamau applied for witness summons for Hassan Lakicha and George Gachihi. It is therefore clear that Mr. AGN Kamau has all along had intention of calling the witnesses whose statements he seeks to file.
8. The right to hearing is a fundamental right which should only be denied in exceptional cases. The circumstances under which Mr. Joseph Ndungu Gathondu is being called are clear. He would not have been called as witness were it not for the death of Thumbi Kariuki. Mr. Hassan Lakicha has been mentioned in a statement recorded by one of the witnesses. Mr. Hassan Lakicha’s role is evident from the statement of Mahat. It will therefore not be a case of being ambushed if his statement were to be allowed. I therefore find that it will not be prejudicial to the other parties in this case if the witness statements are allowed. I therefore grant leave to Mr. AGN Kamau to file witness statements of Hassan Lakicha, Advocate, Mr. George Gachihi and Mr. Joseph Ndungu Gathondu.
It is so ordered.
Dated, Signed and delivered at Nairobi on this 8th day of May, 2019.
E.O.OBAGA
JUDGE
In the presence of
Mr. Muchoki for Plaintiff in ELC 816/2012.
Mr. A.G.N Kamau for Plaintiff in ELC 47/2010
Mr. Ouma for Mr. Ochieng Oduol for 1st Defendant in ELC 47/2010.
Court Assistant Hilda