Thomas Ngarachu Ngugi & 5 others v John Wilfred Wanyoike & 6 others [2019] KEELC 2750 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether unlisted witnesses may be summoned to produce documents at trial
Yes - the Court has discretion under Articles 50 and 159 of the Constitution and the overriding objective to allow additional evidence where relevant and where no prejudice is occasioned
The Court held that the main duty of the Court is to do substantive justice to the parties, guided by Articles 50 and 159 and the overriding objective. The hearing was at its infancy, the Plaintiffs had not closed their case, and the Defendants would have the opportunity to rebut, so no irreparable prejudice would arise. Reliance was placed on Aniket Investment Ltd v Hamadi Mwakibibo and Johana Too v Hellen Tum, which permit additional evidence where the other side can be compensated by costs and can test the evidence in cross-examination.
Relevance of documents to the pleadings as a condition of production
Documents not mentioned in the Plaintiffs' list of documents and whose relevance to the cause of action is not apparent will not be the subject of a witness summons
On reviewing the record, the Court found no mention in the Plaintiffs' lists of documents of the water supply from the borehole at Ngararia market or the letter dated 9/9/15, and could not comprehend their relevance to the pleaded cause of action in nuisance. The summons against the Water Company's Managing Director was therefore declined, while the rest of the application was granted subject to conditions.
Legal principles established
#- Each application to adduce additional evidence must be considered on its own peculiar circumstances, including the stage the trial has reached, and evidence should be admitted where relevant and where any prejudice can be compensated by costs
Court orders
#- 1.Application allowed in part; witness summons declined against the Managing Director, Murang'a South Water and Sanitation Company Limited
- 2.The Defendants shall have the costs in the application
- 3.The Plaintiffs are directed to file and serve the documents within 14 days from the date of the ruling
- 4.The Defendants are granted liberty to file and serve and/or adduce such evidence as they may desire within 14 days
- Jurisdiction invoked
- Original civil jurisdiction; Articles 50 and 159 of the Constitution invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas Ngarachu Ngugi & 5 others v John Wilfred Wanyoike & 6 others [2019] KEELC 2750 (KLR)", Case Analysis (2019). Not stated in judgment (Notice of Motion filed 30/4/2019 in pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2750/eng@2019-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.