[2019] KEELC 5062 (KLR)
The court found that the application to recall the witness was made after the witness had already completed examination-in-chief, cross-examination, and re-examination. The applicant had the opportunity to request further questioning before the witness was released but failed to do so. The court held that there was...
Source-derived case information.
- Citation
- [2019] KEELC 5062 (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
- Miscellaneous Application / Ruling on Application to Recall Witness
- Outcome
- application dismissed with costs
- Legal Topics
- Recall of Witness, Cross Examination Scope, Expert Evidence, Survey Disputes
- 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
Miscellaneous Application / Ruling on Application to Recall Witness
Legal Issues
- 1 Whether the court should allow the recall of a witness for further questioning after completion of cross-examination and re-examination.
- 2 Whether the application to recall the witness was made in a timely and procedurally proper manner.
- 3 Whether the interests of justice require the witness to be recalled.
Ratio Decidendi
The court found that the application to recall the witness was made after the witness had already completed examination-in-chief, cross-examination, and re-examination. The applicant had the opportunity to request further questioning before the witness was released but failed to do so. The court held that there was no sufficient justification to recall the witness at this stage, and that the applicant could have called their own expert if further evidence was required. The court also noted that the credibility of previous government surveyors was a matter for the court to determine, not for counsel to assert as a basis for recalling another witness. Accordingly, the application lacked...
Court Disposition
application dismissed with costs
Orders
- The application to recall the witness is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
28 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 the Plaintiffs in ELC 47 of 2010 presented the evidence of their second witness M/s Bibianah Achieng’ Rabuku a licensed surveyor. After this witness had been examined in chief, cross-examined and re-examined, Mr. Ochieng Oduol for the 1st Defendant in the case applied to the Court to make an order that the witness comes back for purposes of answering a question which she did not answer.
2. Mr. Ochieng Oduol’s application was premised on an answer which the witness gave during cross-examination. The witness had been asked to confirm whether by looking at the survey plan, and deed plan one could establish the location of a particular parcel of land. In answer to this question, the witness stated that one can only establish that by going through the survey records and carrying out calculations before one could establish the location of a particular parcel.
3. Mr. Ochieng Oduol’s application was opposed by Mr. A.G.N. Kamau who argued that it was unnecessary to ask the witness to come back; that the witness was a private surveyor whose expenses he had to meet and that if Mr. Ochieng Oduol wished to have an answer to the issue he was raising, he was at liberty to call evidence of another expert.
4. On his part, Mr. Muchoki opposed the application by Mr. Ochieng Oduol arguing that there was a government surveyor who had been called by the Attorney General and that the kind of questions which Mr. Ochieng Oduol was raising could have been directed to the government surveyors.
5. In answer to the opposition to his application, Mr. Ochieng Oduol argued that the government surveyors came to give lies to Court and that the witness who had testified appeared to be truthful and that there will be no prejudice suffered to the other parties if the witness was to come back to answer the question.
6. I have considered the application by Mr. Ochieng Oduol as well as the opposition thereto by Mr. A.G.N. Kamau and Mr. Muchoki. There is evidence on record in respect of the deed plan in respect of which the witness was being cross-examined. The said evidence was to the effect that the deed plan in question relates to a property in Kiambu. The witness herein testified and completed her evidence. The answer she gave to the question she was asked is that one cannot tell the location of a particular land unless one carries out certain calculations. If Mr. Ochieng Oduol was keen on having the witness go and carry out the calculations, he should not have let the witness complete being cross-examined, re-examined before he could make the application.
7. The witness who had testified before this one stated the reasons why they thought that the deed plan in issue was for a plot in Kiambu County. Whether that is true or not is a question of evidence which will have to be examined by the Court. It will be upon the Court to determine whether this witness refused to answer the question as asked or not. Mr. Ochieng Oduol cannot conclude that the government surveyors were lying and that if the witness herein were to be recalled, she would give truthful evidence. I therefore find no merit in Mr. Ochieng Oduol’s application which is hereby dismissed with costs.
It is so ordered.
Dated, Signed and delivered at Nairobion this 8thday 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