[2021] KEELC 21 (KLR)
The court declined the plaintiff's request for a witness summons to Mr. Gitau Gikonyo on the basis that there was no legal foundation cited for summoning a witness as an officer of the court in a civil matter. The court emphasized that it is the responsibility of the parties to marshal their own witnesses and...
Source-derived case information.
- Citation
- [2021] KEELC 21 (KLR)
- Parties
- Plaintiff: Sandy Creek Holdings Limited; Defendant: Hewa Bora Limited; Defendant: Lewis Kamau Kanyoko
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kwale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 119 of 2021
- Procedural Posture
- Civil Suit / Interlocutory Ruling on Witness Summons
- Outcome
- Application for witness summons declined.
- Legal Topics
- Witness Summons, Advocate Client Confidentiality, Conveyancing Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sandy Creek Holdings Limited
Plaintiff
Hewa Bora Limited
Defendant
Lewis Kamau Kanyoko
Defendant
Procedural Posture
Civil Suit / Interlocutory Ruling on Witness Summons
Legal Issues
- 1 Whether the court should issue a witness summons to Mr. Gitau Gikonyo, an advocate who acted for both parties, to appear as an officer of the court.
- 2 Whether the absence of a witness statement from Mr. Gikonyo precludes his being called as a witness.
- 3 Whether the court has legal basis to summon a witness as an officer of the court in a civil matter.
Ratio Decidendi
The court declined the plaintiff's request for a witness summons to Mr. Gitau Gikonyo on the basis that there was no legal foundation cited for summoning a witness as an officer of the court in a civil matter. The court emphasized that it is the responsibility of the parties to marshal their own witnesses and evidence. The court further noted that the sale agreement at the heart of the dispute was not contested in terms of authenticity, and there was no apparent necessity for the advocate to give evidence on it. The court reiterated its impartial role and the expectation that parties should use their best efforts to present their cases without relying on the court to secure witnesses for...
Court Disposition
Application for witness summons declined.
Orders
- The request for a witness summons to Mr. Gitau Gikonyo is declined.
- Date for further hearing to be fixed at the registry on a priority basis.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVINROMENT AND LAND COURT AT KWALE
ELC NO. 119 OF 2021
(FORMELY ELC NO. 311 OF 2017 MOMBASA.
SANDY CREEK HOLDINGS LIMITED
VERSUS
HEWA BORA LIMITED.......................................... 1ST DEFENDANT
LEWIS KAMAU KANYOKO..................................2ND DEFENDANT
RULING
1. This matter was fixed for hearing on 16th November 2021. The hearing proceeded physically in Kwale when the Plaintiff called Christopher Erick Githaiga Notingham as its witness. He was led in evidence by his Counsel Mr. Rugo and stepped down after re- examination.
2. Mr. Rogo informed the court that his next witness was Mr. Gitau Gikonyo, the lawyer who acted for both parties in the conveyance relating to the suit property. That Mr. Gikonyo was averse to signing a witness statement in this regard as he did not want to appear as if he were taking sides for either of parties having acted for both of them in the sale of the suit property. He would be conflicted and was bound by advocate client confidentiality. Further that Mr. Gitau has opted to appear as an officer of the Court.
3. Based on the foregoing Counsel sought for witness summons to issue.
4. Ms. Wainaina Counsel for the defendant protested that she was being ambushed. That the defendants had assumed that the said witness had been dropped since the witness statement had not been forthcoming and had not been filed. Counsel urged that Mr. Gikonyo should file his witness statement and state his constraints therein.
5. In further response Mr. Rogo stated that Mr. Gikonyo having acted for both parties in the conveyance has information that will assist both parties as a material witness.
6. I have considered the application and the submissions of both Counsel. The dispute is based on a sale agreement whose authenticity is not denied by either party. The agreement is plain and simple and from looking at it this court sees no reason why the advocate would be called to give evidence on the same. This is not to say that Counsel is estopped from calling Mr. Gitonga as a witness, he still has the option to do so. In my view the Plaintiff is clearly seeking the courts help in bringing their evidence to court. Moreover, Counsel has not cited to this court the legal basis upon which this court may summon a witness as an officer of this court. This is a civil matter the parties are expected to use the best of their efforts to marshal their witnesses and evidence that will prove their cases. The Court in a dispute before it is expected to be impartial and or neutral, expected to arrive at a determination based on the evidence, the facts placed before it and guided by the law.
The upshot is that the request is declined.
Date for further hearing to be fixed at the registry on priority basis this being a partly heard matter.
DATED THIS 25TH DAY OF NOVEMBER, 2021.
HON. ADDRAYA EDA DENA
VIA EMAIL AS PROVIDED BY THE PARTIES
Plaintiff – advocatesgwQgmail.com
Defendant pleadings@mgmail.com