[2015] KEHC 1540 (KLR)

REPUBLIC OF KENYA

HIGH COURT OF KENYA AT MOMBASA

CIVIL CASE NO. 139 OF 2004

SWALEHE MOHAMED MWAKURIWA.....................................PLAINTIFF

-versus-

SAMUEL NJOROGE WARUHIU & 3 OTHERS................... DEFENDANT

RULING

1. This ruling has arisen because the plaintiff has chosen to close his case without adducing evidence by relying on the provisions of order 17 rule 4 which position the defendant is unhappy with. Briefly, part of the record shows that on 14th November 2007, Maraga, J. directed that defendant’s two applications dated 11th October 2005 and 10th April 2007 be heard together on 6th December 2007. The matter was adjourned several times after. On 27th February 2012 an application dated 19th January 2012 was filed seeking leave to substitute the defendant with executors of his estate since he had died on 30th March 2011. The Application for leave was granted by Tuiyott, J. on 14th May 2012. On 16th June 2014, Mukunya, J. directed that the parties comply with pre-trial directions and thereafter fix the main suit for hearing. This effectively meant that the case was to proceed for main hearing before the two applications were dispensed with.

2. The matter was fixed for hearing and on 13th October 2015, the matter came up for hearing of the plaintiff’s suit when Mr. Oddiaga, learned counsel for the Plaintiff in the main suit and 1st Defendant in the counterclaim informed this court that the plaintiff did not wish to tender any evidence and that he closed his case.

3. Ms. Wangoicho for Plaintiff in the counterclaim and Defendant in main suit (now substituted by his executors) opposed the procedure adopted by Mr. Oddiaga. She submitted that since the plaintiff had filed witnesses’ statements and a list of documents dated 26th August 2013, Swalehe ought to take the stand, adopt his statement and subject himself to cross examination. That if Swalehe choose not to testify, then he ought to withdraw his claim so that parties can address the issue of costs. Ms. Wangoicho also submitted that her client had filed an application for summary judgment on 19th July 2004 and Swalehe subsequently obtained an order which the Defendant is challenging. That if Swalehe's move is a withdrawal of the case, then all orders and subsequent actions are invalid including the transfers of the suit property to the 2nd and 3rd Defendants.

4. Mr. Kiarie Kariuki, learned counsel for Dr. Rekhi 2nd Defendant in the counter-claim submitted that whether the Plaintiff chooses to testify or not is his choice. And if there was an order for summary judgment, it can only be set aside when the court is appropriately moved. Mr. Omolo, learned counsel for LUCIANA PARAZZI, the third Defendant to the counterclaim submitted that the court cannot force a party to tender evidence and that a party who chooses not to tender evidence should be ready to face the consequences.

5. In a rejoinder, Mr. Oddiaga submitted that Order 17 Rule 4 of the Civil Procedure Rules, 2010 allows this court to write a decision based on the pleadings put before it. Ms. Wangoicho then applied that in case this court finds that the Plaintiff's claim is not dismissed or withdrawn, then the court do issue summons to Swalehe to attend to be cross-examined by the Defendant under Order 16. However, Mr. Oddiaga objected to that application arguing that since the Defendant has a counterclaim, let the Defendant take the stand and thereafter make a formal application for the summons.

6. Order 17 rule 4 provides thus, “where any party to a suit to whom time has been granted fails to produce his evidence or to cause the attendance of his witnesses or to perform any other act necessary to the further progress of the suit for which time has been allowed, the court may notwithstanding such default, proceed to decide the suit forthwith.”This means that whatever the position taken by a party to a suit, the court is under a duty to render a decision at the conclusion of the suit. In this instance, it is my view that there are two suits in one i.e. the first suit brought by the plaintiff and the second suit by the defendant in the counter-claim. Since the plaintiff has chosen to close his case, the procedural thing to do next is for the defendant to proceed to do his case. It is at the conclusion of the two cases that it would be appropriate for this court to render a decision on the two cases before it. Although the defendant in the main suit and the plaintiff in the counter-claim is unhappy with the procedure adopted by the plaintiff in doing his case, the civil process gives him that option. This court cannot also render its decision peacemeal before the counter-claim is heard and concluded.

7. In regard to the issuance of summons to the Plaintiff to testify, this application may be premature for two reasons. First, the defendant has to open his case before introducing witnesses to his claim and secondly he has to lay a basis why he would want the plaintiff to be called as his witness. Such basis may require the filing of a formal application or serving the requisite notice which then gives that plaintiff an opportunity to reply and explain himself whether he is agreeable to testify or not. I will thus not make a determination on the application for the summoning of the plaintiff as a witness at this stage. This matter shall therefore proceed to hearing on the counter-claim on a mutually convenient date to all parties.

Ruling signed and delivered in Mombasa this 26th October 2015

A. OMOLLO

JUDGE