[2022] KEELC 1485 (KLR)
The court found that the plaintiff's objection to the admission of the defendant's witness statements was unmeritorious. The judge emphasized the constitutional imperative to administer justice without undue regard to procedural technicalities and to ensure that parties are not condemned unheard. The court was...
Source-derived case information.
- Citation
- [2022] KEELC 1485 (KLR)
- Parties
- Plaintiff: Silvance Odhiambo Abayo; Defendant: Martin Onyango Rege
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 36 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Admissibility of Defendant's Witness Statements
- Outcome
- Plaintiff's application disallowed; defendant's witness statements admitted; defendant's case to proceed.
- Legal Topics
- Admissibility of Evidence, Witness Statements, Reinstatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silvance Odhiambo Abayo
Plaintiff
Martin Onyango Rege
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Admissibility of Defendant's Witness Statements
Legal Issues
- 1 Whether the defendant's witness statements should be admitted into evidence despite alleged delay in service.
- 2 Whether the defendant should be denied the right to present evidence due to procedural lapses by previous counsel.
Ratio Decidendi
The court found that the plaintiff's objection to the admission of the defendant's witness statements was unmeritorious. The judge emphasized the constitutional imperative to administer justice without undue regard to procedural technicalities and to ensure that parties are not condemned unheard. The court was guided by Article 159(2)(d) of the Constitution, which mandates substantive justice, and by the principle that mistakes of counsel should not prejudice a litigant's right to be heard. The court also referenced the right to access justice and a fair hearing under Articles 48 and 50(1) of the Constitution. Accordingly, the court disallowed the plaintiff's application and allowed the...
Court Disposition
Plaintiff's application disallowed; defendant's witness statements admitted; defendant's case to proceed.
Orders
- The defendant's witnesses' statements be presented in evidence to meet the ends of justice.
- The defendant's case to proceed without delay.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT HOMA BAY
ELC CASE NO 36 OF 2021
(FORMERLY MIGORI ELC NO. 103 OF 2017)
AND
(FORMERLY KISII ELC NO 366 OF 2013)
SILVANCE ODHIAMBO ABAYO.......................................................PLAINTIFF
VERSUS
MARTIN ONYANGO REGE..........................................................DEFENDANT
RULING
1. I have heard counsel for the respective parties regarding two witnesses’ statements by the defendant’s counsel. The same duly served on the Plaintiff Advocate. Today, the Plaintiff’s counsel laments of delay thereof.
2. The plaintiff’s counsel has objected to their admission herein and that they be expunged for the record. That the defendant’s case be deemed duly closed.
3. The defendants’ counsel has told the court, inter alia, that that the suit was reinstated after he came on record due to mistake of counsel from whom he took over the matter and that the defendant be not condemned unheard.
4. I bear in mind the history of this suit and the nature of it. I further note Article 159(2) (d) of the Constitution of Kenya, 2010.
5. In view of the above and in the spirit of Articles 48,50(1) as read with Article 25(c) of the Constitution of Kenya, 2010and being guided by the decision in the case of Philip Chemwoloandanother-versus-Augustine Kubende (1986) eKLR, I find the plaintiff’s prayer unmeritorious. The same fails.
6. Wherefore, I disallow the plaintiff’s application on the following terms:
a. The defendant’s witnesses’ statements be presented in evidence to meet the ends of justice.
b. The defendant’s case to proceed without delay; see Article 159(2) (b) of the Constitution (supra).
c. It is so ordered.
DATED AND DELIVERED AT HOMA BAY THIS 27TH JANUARY, 2022
G.M.A ONG’ONDO
JUDGE
Present;
a. Ms. Opondo, learned counsel for the plaintiff
b. Mr. Kisia, learned counsel for the defendant.
c. Okelo, court assistant