[2023] KEELC 18796 (KLR)
The court found that the reasons advanced for adjournment, namely the ailment of counsel and the absence of a medical document, were not sufficiently justified, especially since counsel for the interested parties was able to give directions and had previously arranged for representation. The court also determined...
Source-derived case information.
- Citation
- [2023] KEELC 18796 (KLR)
- Parties
- Plaintiff: Unity 45 Housing Co-operative Society Limited; Defendant: Peter Ngulu Kimuli; Defendant: Kori Kamuyu; Defendant: Sammy Kamande; Defendant: Peter Mwaga; Interested Party: Dorice Auma Owuor; Interested Party: Timothhy Mwema Kibanga; Interested Party: Joshua Nzua Muthusi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 994 of 2014
- Procedural Posture
- Environment and Land Case / Ruling on Adjournment and Substitution of Witness
- Outcome
- Application for adjournment dismissed; substitution of witness statement allowed; case to proceed.
- Judges
- LN Mbugua
- Legal Topics
- Adjournment of Hearing, Substitution of Witness, Admissibility of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Unity 45 Housing Co-operative Society Limited
Plaintiff
Peter Ngulu Kimuli
Defendant
Kori Kamuyu
Defendant
Sammy Kamande
Defendant
Peter Mwaga
Defendant
Dorice Auma Owuor
Interested Party
Timothhy Mwema Kibanga
Interested Party
Joshua Nzua Muthusi
Interested Party
Procedural Posture
Environment and Land Case / Ruling on Adjournment and Substitution of Witness
Legal Issues
- 1 Whether the case should be adjourned due to counsel's ailment and absence.
- 2 Whether a new witness statement, claimed to be identical to the previous witness's, should be admitted as evidence.
Ratio Decidendi
The court found that the reasons advanced for adjournment, namely the ailment of counsel and the absence of a medical document, were not sufficiently justified, especially since counsel for the interested parties was able to give directions and had previously arranged for representation. The court also determined that the substitution of a witness with a new statement identical to the previous witness's statement would not prejudice the proceedings, and thus allowed the new witness statement to be admitted as evidence. The case was ordered to proceed without adjournment.
Court Disposition
Application for adjournment dismissed; substitution of witness statement allowed; case to proceed.
Orders
- The case shall not be adjourned.
- The new witness statement, being identical to the previous one, shall be admitted as evidence during trial.
Full Case Text
Judgment text and source record
26 paragraphs
Unity 45 Housing Co-operative Society Limited v Kimuli & 3 others (As Chairman, Secretary, Treasurer and Patron of Maili Saba Mwengenye Youth Self Help Group); Owuor & 2 others (Interested Parties) (Environment & Land Case 994 of 2014) [2023] KEELC 18796 (KLR) (12 July 2023) (Ruling)
Neutral citation: [2023] KEELC 18796 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 994 of 2014
LN Mbugua, J
July 12, 2023
Between
Unity 45 Housing Co-operative Society Limited
Plaintiff
and
Peter Ngulu Kimuli, Kori Kamuyu, Sammy Kamande & Peter Mwaga (As Chairman, Secretary, Treasurer and Patron of Maili Saba Mwengenye Youth Self Help Group)
Defendant
and
Dorice Auma Owuor
Interested Party
Timothhy Mwema Kibanga
Interested Party
Joshua Nzua Muthusi
Interested Party
Ruling
1. This second ruling relates to the prayer for adjournment made by Mr. Kopere on behalf of Mr. Esuchi. On the issue of Mr. Esuchi’s ailment, this court rendered a decision this morning. The medical document being availed by 3rd Interested Party was not availed to the court or to the plaintiffs advocate this morning. It is quite apparent that counsel for 1st & 3rd Interested Parties is able to give directions on the matter, since he did managed to send a counsel to hold his brief on the earlier day of 5. 7.2022 as well as today.
2. The court’s records are also self explanatory and I need not rehash what transpired on 5. 7.2023. the averments being advanced by Mr. Kopere as to what transpired last time on 5. 7.2022 are hence not warranted. The case shall not be adjourned.
3. On the issue of the statement that Mr. Kopere desires to avail to substitute his witness who is sick, I find that he claims that the new witness statement is word for word that of the previous witness. As long as that is the situation, then the said witness statement shall be admitted as evidence in court during the trial.
4. For now the case is to proceed.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JULY, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Mbichire for PlaintiffKibukosya holding brief for Esuchi for 1st - 3rd Defendants and for 1st Interested PartyOngocho holding brief for Kopere for Defendants and for 2nd Interested PartyCourt assistant: Eddel