[2019] KEHC 12156 (KLR)
The court found that the application to recall the plaintiff to testify was made too late, nearly ten months after the plaintiff had already testified and been cross-examined. The court noted a pattern of adjournments and delays attributable to the plaintiff, including the abrupt change of advocates and repeated...
Source-derived case information.
- Citation
- [2019] KEHC 12156 (KLR)
- Parties
- Plaintiff: Samuel O. Tima; Plaintiff: Lydia Nyambonyi; Defendant: Housing Finance Company of Kenya; Defendant: Joseph Kariuki Wanyugi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 660 of 2002
- Procedural Posture
- Civil Case / Interlocutory Application Ruling
- Outcome
- Application to recall the plaintiff to testify is declined.
- Legal Topics
- Recall of Witness, Abuse of Process, Adjournment, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel O. Tima
Plaintiff
Lydia Nyambonyi
Plaintiff
Housing Finance Company of Kenya
Defendant
Joseph Kariuki Wanyugi
Defendant
Procedural Posture
Civil Case / Interlocutory Application Ruling
Legal Issues
- 1 Whether the plaintiff should be allowed to be recalled to testify in order to produce additional documents after having already testified and been cross-examined.
- 2 Whether the application to recall the plaintiff amounts to an abuse of court process and causes undue delay.
Ratio Decidendi
The court found that the application to recall the plaintiff to testify was made too late, nearly ten months after the plaintiff had already testified and been cross-examined. The court noted a pattern of adjournments and delays attributable to the plaintiff, including the abrupt change of advocates and repeated applications for leave. The court had already granted leave to amend the plaint and file additional documents and witness statements, and the directions were clear that the hearing should proceed from where it had stopped. Allowing the plaintiff to be recalled would amount to starting the matter afresh, contrary to the court's directions and the need for expeditious disposal of...
Court Disposition
Application to recall the plaintiff to testify is declined.
Orders
- The application to have the plaintiff recalled to testify is dismissed.
- The matter will proceed for hearing with the plaintiff calling their remaining witnesses and thereafter closing its case.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CIVIL CASE NO.660 OF 2002
SAMUEL O. TIMA........................................1ST PLAINTIFF/RESPONDENT
LYDIA NYAMBONYI..................................2ND PLAINTIFF/RESPONDENT
VERSUS
HOUSING FINANCE COMPANY OF KENYA................1ST DEFENDANT
JOSEPH KARIUKI WANYUGI.................2ND DEFENDANT/APPLICANT
RULING AND DIRECTIONS
Mr. Kyengo Counsel acting for the Plaintiff has made an oral application seeking to have the Plaintiff recalled to testify in order to produce certain documents. The application was strenuously opposed by Counsel for the Defendant.
This is a matter in which the hearing commenced before Hon. Lady Justice Sewe. After many false starts the Plaintiff eventually testified in court on 21st February 2018. The Plaintiff concluded his testimony and was duly cross-examined by defence Counsel and re-examined by his Advocate. A second witness testified on behalf of the Plaintiff on 20th April 2018. That witness was also duly cross-examined by defence counsel and re-examined.
At this point Justice Sewe was transferred to Eldoret High Courtand this Court took over the matter. On 14th May 2019 counsel for the Plaintiff applied and was granted leave to cease acting for the Plaintiff. Vide a Notice of Change of Advocates dated 25th June 2019. Mr. Kyengo then came on record for the Plaintiff. On 28th June 2019 Mr Kyengo applied for and obtained from the Court leave to do the following:-
(i) Amend the Plaint
(ii) File a Supplementary bundle of Documents
(iii) File additional witness statements.
On 28th November 2019 when the matter was slated for hearing Counsel for the Plaintiff sought to re-call the Plaintiff to testify. This application is being made almost ten (10) months after the Plaintiff first gave his evidence. I have carefully perused the court file. I note that the Plaintiff has severally sought adjournments which have caused delay in the hearing of this suit. On 14th May 2019 when the matter was scheduled for hearing the Plaintiff abruptly decided to relieve his advocate of instructions on basis that he had no confidence in said Counsel. The Court did on that day express its misgivings about the antics of the Plaintiff. I cannot help but suspect that the present application amounts to a further attempt by the Plaintiff to delay the hearing and determination of this suit. This is a very old 2002 matter. The court has already bent over backwards in order to accommodate the various applications made by the Plaintiff. Although this court recognizes and upholds the right of a Plaintiff to be represented by counsel of his choice, this right ought not be abused to disrupt and delay the conclusion of a suit. The court has an obligation to ensure the fair and expeditious conclusion of all matters before it. The Plaintiff’s advocate has already amended the Plaint and filed fresh documents and witness statements, in line with the leave granted by this court.
In my view this application to re-call the Plaintiff comes too late in the day. It is merely an abuse of Court process as it would effectively means that the court is being asked to start the matter denovo which runs contra to the court directions of 4th July 2018 that the hearing proceed from where it had stopped.
In the premises I decline to allow the application to have the Plaintiff re-called to testify. The matter will proceed for hearing, the Plaintiff shall call their remaining witnesses and thereafter close its case. It is so ordered.
Dated in Nairobi this …2nd ..day of December, 2019.
………………………………...
Justice Maureen A. Odero