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ELCDismissedELC 47 of 2010· [2019] KEELC 5062 (KLR)

Rajab Ahmed Karume v Chief Registrar & 2 others [2019] KEELC 5062 (KLR)

Environment and Land Court
8 May 2019
EOE. O. Obaga
612 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to let a party recall a surveyor witness because his lawyer waited too long to raise the issue, and the party must pay the other side's legal costs.

What this practically means

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Executive summary

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This is an interlocutory ruling delivered by E. O. Obaga J in ELC 47 of 2010 (a matter consolidated with ELC 816 of 2012) at the Environment and Land Court, Nairobi. After Bibianah Achieng' Rabuku, a licensed surveyor and second witness for the plaintiffs, completed cross-examination and re-examination, Mr. Ochieng Oduol for the 1st Defendant applied for an order that she return to answer a question regarding whether the location of a parcel of land could be established from the survey and deed plans. The witness had answered that location could only be established by consulting survey records and carrying out calculations. Mr. A.G.N. Kamau opposed, noting the witness was a private surveyor at his expense and the applicant could call another expert; Mr. Muchoki noted a government surveyor had testified for the Attorney General. The court held that evidence on the deed plan was already on record, that whether the deed plan related to a Kiambu property was a question for the court on the evidence, and that counsel should have raised the issue before the witness concluded her testimony. Counsel's suggestion that government surveyors lied was rejected as speculative. The application was dismissed with costs. The matter proceeds to full hearing on the evidence already adduced.

Key legal issues

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01

Recall of a witness after completion of testimony

Holding

The application was dismissed because counsel allowed the witness to complete cross-examination and re-examination before applying, and it was for the court, not counsel, to determine whether the witness refused to answer the question

Reasoning

The court noted evidence on record concerning the deed plan and that the question of whether it related to a Kiambu property was a matter of evidence for the court to examine. Counsel's assertion that government surveyors lied and this witness would be truthful was speculative. The remedy of calling another expert was open to the applicant.

p. 1

Legal principles established

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  • A party who wishes a witness to be recalled to answer an outstanding question must raise it before the witness completes cross-examination and re-examination

Court orders

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  1. 1.The application by Mr. Ochieng Oduol seeking recall of the witness is dismissed with costs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit; interlocutory application for recall of a witness

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Rajab Ahmed Karume v Chief Registrar & 2 others [2019] KEELC 5062 (KLR)", Case Analysis (2019). ELC 47 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5062/eng@2019-05-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.