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Kenya decisions
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Wanderi v Nganga [2025] KEELC 5005 (KLR)
The Environment and Land Court allowed an appeal against refusal to call a witness who lacked a statement, holding that procedure should not defeat substantive justice.
Juma (Suing as the Administrator of the Estate of the Late Amos Juma Abelo alias Malowa Abura) v Abura & another [2025] KEELC 5028 (KLR)
The court found that the witness statement of Monica Otieno Oyugi could not be admitted as evidence in chief because it was not an affidavit and did not meet the requirements for admissibility under Sections 33 or 35 of the Evidence Act. Section 33 requires that the statement fit within specific exceptions, which the statement did not. Section 35 applies to documentary evidence, not to unsworn witness statements. The court emphasized that a witness statement is not evidence until adopted in court, and the adversarial system requires that evidence be tested through cross-examination. Admitting…
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Gulbahar & another v Fidelity Security Limited & 2 others [2025] KEHC 9601 (KLR)
The High Court allowed a 2nd Defendant’s application to correct a typographical error in witness statement dates, granted leave to file additional statements, and made no order as to costs.
Naki Investments Company Limited & another v Vekaria & another; Vekaria & another (Plaintiffs to the Counterclaim); Naki Investments Company Limited & 8 others (Defendant to the Counterclaim) [2025] KEELC 4528 (KLR)
The court found that although the plaintiffs sought to file additional witness statements after close of pleadings and pretrial conference, they provided a plausible explanation for the delay—namely, that the intended witnesses had not signed their statements in time. The court held that the defendants failed to demonstrate any prejudice they would suffer, as the matter had not been set down for hearing and they would have the opportunity to cross-examine the witnesses. The court emphasized that the Civil Procedure Rules allow for enlargement of time and that Article 159(2)(d) of the Constitu…
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Simandi Investments Limited v Macharia & 2 others [2025] KEELC 3935 (KLR)
The court held that affidavits are not the standard mode of presenting evidence at trial in civil proceedings, except where the court grants leave for their use. Since the 1st Defendant intends to call the deponents as witnesses, and no leave was sought or granted for the affidavits to be used as evidence at trial, their inclusion in the trial bundle is contrary to the Civil Procedure Rules. The mere filing of affidavits does not render them admissible as evidence. However, recognizing the need to facilitate substantive justice and avoid undue prejudice, the court granted the 1st Defendant le…
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Kimenyi v Attorney General & another [2025] KEELRC 1401 (KLR)
The court dismissed a motion to strike out board minutes attached to a substitute witness statement, finding the objection premature and the minutes not yet evidentiary.
Gachungu (Suing on Her Own Behalf and as Administratix of the Estate of George Gathungu Gitu) v Gathungu & 3 others [2025] KEELC 3223 (KLR)
Leave to file additional witness statements may be granted where the hearing has not commenced and no undue prejudice will be suffered by the opposing party, in order to facilitate the just and conclusive determination of the dispute.
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Mumma v Kenya Anti-Corruption Commission [2025] KEHC 4780 (KLR)
The High Court dismissed an application seeking clarification of an earlier appeal ruling, holding that the prior dismissal left the trial court’s existing orders in force.
Kamau & another (Suing as the Legal Representatives of Nyambura Kamau (Deceased)) v Wainaina [2025] KEELC 1283 (KLR)
The court denied the Defendant's application for leave to file a witness statement and additional documents because the Defendant failed to provide a satisfactory explanation for the delay in presenting the evidence and introducing it at this late stage of the proceedings would be unfair to the Plaintiffs.
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Otieno v Kenya Medical Women Association [2025] KEELRC 687 (KLR)
The court allowed the respondent to file witness statements and amended response out of time, finding the delay inordinate but excusable in the interests of justice.
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