[2013] KEHC 5578 (KLR)
The court held that the objection by the defence to disqualify the plaintiff's witnesses who were present in court during PW1's testimony was not supported by any legal authority. The binding precedent from the Court of Appeal in Kenga Kaingu Mweni & others Vs Republic establishes that such presence does not...
Source-derived case information.
- Citation
- [2013] KEHC 5578 (KLR)
- Parties
- Plaintiff: Sammy Kanyingi Mugereki (suing as administrators ad colligenda bona for the Estate of Kahuri Karanja); Defendant: Joseph Mwaura Muruki; Defendant: Paul Chomba
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 20 of 2010
- Procedural Posture
- Land and Property Suit / Interlocutory Ruling on Objection to Witness Eligibility
- Outcome
- objection dismissed; plaintiff's witnesses allowed to testify
- Judges
- OA Angote
- Legal Topics
- Witness Eligibility, Courtroom Presence, Evidence Weight, Land Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sammy Kanyingi Mugereki (suing as administrators ad colligenda bona for the Estate of Kahuri Karanja)
Plaintiff
Joseph Mwaura Muruki
Defendant
Paul Chomba
Defendant
Procedural Posture
Land and Property Suit / Interlocutory Ruling on Objection to Witness Eligibility
Legal Issues
- 1 Whether witnesses who were present in court during the testimony of another witness are disqualified from testifying.
- 2 Whether the presence of prospective witnesses in court affects the admissibility or only the weight and credibility of their evidence.
Ratio Decidendi
The court held that the objection by the defence to disqualify the plaintiff's witnesses who were present in court during PW1's testimony was not supported by any legal authority. The binding precedent from the Court of Appeal in Kenga Kaingu Mweni & others Vs Republic establishes that such presence does not disqualify a witness from testifying; it only goes to the credibility or weight of their evidence. Therefore, the court allowed the plaintiff's witnesses to testify, reserving the right to consider the weight and credibility of their evidence in the final judgment.
Court Disposition
objection dismissed; plaintiff's witnesses allowed to testify
Orders
- The plaintiff's witnesses who were present in court on 9th July 2013 while PW1 was testifying are allowed to give their evidence.
- The objection by the defence is disallowed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
HCCC NO. 20 OF 2010
SAMMY KANYINGI MUGEREKI(suing as administrators ad colligenda bona for the Estate ofKAHURIKARANJA............................................................PLAINTIFF
=VERSUS=
1. JOSEPH MWAURA MURUKI
2. PAUL CHOMBA.......................................................DEFENDANTS
R U L I N G
This matter came up for further hearing of the Plaintiff's case on 9th July 2013. PW1 was recalled to produce some of the documents that the defence had objected to on 20th May 2013.
After the testimony of PW1, the Plaintiff's counsel realised that the other Plaintiff's witnesses were in court when PW1 was recalled to testify. The Defendant's advocate objected to the witnesses who were in court from being called as Plaintiff's witnesses.
I reserved my Ruling for 18th July 2013 and directed the advocates to put in written submissions on the issue.
Mr. Okuto, counsel for the Plaintiff supplied to this court a copy of the Court of Appeal decision in Mombasa Criminal appeal NO. 42 of 1997; Kenga Kaingu Mweni & others Vs Republic.
In the said caseOmolo, Akiumi and Lakha JJAheld as follows:
“The fact that a prospective witness was in court while others gave evidence did not disqualify that person but went only to the credibility or weight to be given to their evidence. The judge thus erred in disqualifying one of the defence witnesses for having been in court.”
The defence counsel has not supplied me with any authority to the effect that a prospective witness who was present in court while another one was testifying is prohibited from giving evidence.
I am bound by the decision of the Court of Appeal. In the circumstances, I shall allow the Plaintiff's witnesses who were in court on 9th July 2013 while PW1 was testifying to give their evidence.
I shall consider the weight and credibility of their evidence in view of their presence in the court room while PW1 was testifying during the delivery of my Judgment in accordance with the Court of Appeal decision quoted above.
The objection by the defence is therefore disallowed.
Dated and Delivered in Malindi this 18th day of July,2013
O. A. Angote
Judge