Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in judgment (Notice of Motion filed 30/4/2019 in pending suit)· [2019] KEELC 2750 (KLR)

Thomas Ngarachu Ngugi & 5 others v John Wilfred Wanyoike & 6 others [2019] KEELC 2750 (KLR)

Environment and Land Court
24 June 2019
2,697 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Plaintiffs, who sued the Defendants for interference with the sewerage system of their building on LOC4/NGARARIA/908/20 and sought injunctions and damages, filed a Notice of Motion on 30/4/2019 seeking witness summons to issue against the Public Health Officer, Murang'a County, the Managing Director of Murang'a South Water & Sanitation Company Limited and the Executive Officer of the Kandara Magistrate's Court, to produce documents in support of the Plaintiffs' case at the resumed hearing of 6/5/2019. The 5th Defendant opposed the application through grounds of opposition, arguing the documents were not in the Plaintiffs' list of documents, that certified copies of the criminal case proceedings could be produced under sections 80-83 of the Evidence Act, and that the witnesses were not listed; the other Defendants also opposed orally, citing prejudice. The Court, applying Aniket Investment Ltd v Hamadi Mwakibibo and Johana Too v Hellen Tum and guided by Articles 50 and 159 of the Constitution and the overriding objective, held that each case must be considered on its own circumstances and that additional evidence may be admitted where relevant and where prejudice can be cured by costs. Since the Plaintiffs' case was at its infancy and the Defendants could rebut, the application was allowed, except the summons against the Managing Director of the Water Company, which was declined as the documents were not listed and their relevance was not discernible. Defendants were awarded costs, and directions on filing and rebuttal evidence within 14 days were issued.

Key legal issues

#
01

Whether unlisted witnesses may be summoned to produce documents at trial

Holding

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

Reasoning

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.

p. 3
02

Relevance of documents to the pleadings as a condition of production

Holding

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

Reasoning

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.

p. 3

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. 1.Application allowed in part; witness summons declined against the Managing Director, Murang'a South Water and Sanitation Company Limited
  2. 2.The Defendants shall have the costs in the application
  3. 3.The Plaintiffs are directed to file and serve the documents within 14 days from the date of the ruling
  4. 4.The Defendants are granted liberty to file and serve and/or adduce such evidence as they may desire within 14 days

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Evidence ActSections 80, 81, 82, 83

Cases cited (2)

  • Aniket Investment Limited Vs Hamadi Mwakibibo
    (2018) EKLR
  • Johana Too Vs Hellen Tum
    2014 EKLR
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.