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ELCPartially AllowedELC 99 of 2016 (consolidated with ELC 6 of 2016)· [2020] KEELC 371 (KLR)

Grace Akinyi Ngoge v John Abuya Isanda & 2 others [2020] KEELC 371 (KLR)

Environment and Land Court
28 October 2020
EOE OBAGA
984 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed a witness to be recalled for cross-examination on an oral request and admitted late-filed county documents in the interest of justice.

What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Nairobi (E. Obaga J) determines an oral application made on 8th October 2020 during further hearing of two consolidated suits, ELC 99 of 2016 (Grace Akinyi Ngoge v John Abuya Isanda & Mary Njoki Fundi) and ELC 6 of 2016 (in which Nairobi City County is the Defendant). Mr Achoki, counsel newly on record for Nairobi City County, sought leave to recall the Plaintiff for further cross-examination and to have the documents he had filed admitted. Mr Otieno for the Plaintiff opposed, arguing the Plaintiff had already testified, been cross-examined and re-examined, that the oral application was an ambush, and that the documents should be expunged. Mr Webale for the 1st and 2nd Defendants supported the application. The court framed two issues: whether the Plaintiff needed to be recalled, and whether the documents should be admitted. It observed that Nairobi City County, as custodian of land allocation records and a Defendant in ELC 6 of 2016, had not yet cross-examined the Plaintiff, whose evidence was not closed as she had been stood down to produce originals. Holding that no formal application was required and that no prejudice would ensue, the court allowed the application: the Plaintiff was to be recalled for further cross-examination and the county's documents and witness statement were deemed properly filed and admitted. No costs order was made.

Key legal issues

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01

Whether the Plaintiff could be recalled for further cross-examination on an oral application

Holding

Yes - the oral application by counsel for the Defendant in ELC 6 of 2016 was allowed because the Plaintiff had not closed her evidence and Nairobi City County, central to the dispute, had a right to cross-examine on the documents

Reasoning

The court noted that the previous advocate had cross-examined the Plaintiff but that Nairobi City County, having been sued as a Defendant in ELC 6 of 2016 and being custodian of land allocation records, ought to cross-examine the Plaintiff on the documents relied on in that suit. The Plaintiff's evidence was not closed as she had been stood down to produce originals. No formal application was necessary and no prejudice would be suffered since the Plaintiff would have an opportunity to re-examine.

p. 2
02

Whether the documents and witness statement filed by Nairobi City County should be admitted

Holding

Yes - they were deemed properly filed and admitted as part of the documents of Nairobi City County in the interest of justice

Reasoning

The court found the documents were extracts from the county's records and correspondence, not new to the parties. Counsel for the 1st and 2nd Defendants had already sought summons for county witnesses and the court had allowed filing of witness statements from the county. Nairobi City County being at the centre of the dispute as custodian of land allocation records, admitting the documents served the interest of justice.

p. 2

Legal principles established

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  • A formal application is not required for the recalling of a witness for further cross-examination

Court orders

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  1. 1.The application by Mr Achoki is allowed
  2. 2.The Plaintiff shall be recalled for further cross-examination
  3. 3.The documents and witness statement filed by Nairobi City County are deemed properly filed and admitted as part of the documents of Nairobi City County
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to ownership of land

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, "Grace Akinyi Ngoge v John Abuya Isanda & 2 others [2020] KEELC 371 (KLR)", Case Analysis (2020). ELC 99 of 2016 (consolidated with ELC 6 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/371/eng@2020-10-28

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