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ELCDismissed· [2020] KEELC 2492 (KLR)

Wikio Investment Company Limited v Purity Kimwati Ikayo & another [2020] KEELC 2492 (KLR)

Environment and Land Court
14 May 2020
COChristine Ochieng
945 words in judgment
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The bottom line

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When a court has already entered judgment against you, ask the court to set it aside first—recalling witnesses comes later.

What this practically means

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Executive summary

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The Defendants moved the court by Notice of Motion dated 16th October 2019, under sections 1A, 1B and 3 of the Civil Procedure Act and Order 40(1)(a) of the Civil Procedure Rules, seeking to recall the Plaintiff's witnesses for cross-examination and to require the Plaintiff to produce all exhibits, with costs in the cause. The application was supported by the affidavit of Julius Kipolonka Malei, who deponed that he learnt on 3rd October 2019 that the matter was listed for judgment, that the Defendants had never been served with a hearing notice, and that their land parcel Kajiado/Kitengela/35845 was restricted without justification. The Plaintiff filed no response. The court identified a single issue: whether the Plaintiff's witnesses should be recalled. From the record, interlocutory judgment had been entered against the Defendants on 29th January 2015 before transfer from Machakos ELC to Kajiado ELC, and formal proof proceeded on 11th June 2018 in their absence. The Defendants had filed a Statement of Defence on 10th December 2018 without leave, after the hearing. Relying on Order 18 rule 10, section 146(4) of the Law of Evidence Act, and Order 10 Rules 6, 9, 10 and 11, the court held the application premature: the Defendants must first apply to set aside the interlocutory judgment and file their defence, witness statements and documents before seeking to recall witnesses. The application was dismissed with costs. Judgment delivered via email on 14th May 2020 by Christine Ochieng, Judge.

Key legal issues

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01

Whether the Defendants could recall the Plaintiff's witnesses where interlocutory judgment had been entered against them

Holding

The application was unmerited because interlocutory judgment had already been entered; the proper course was to apply to set aside that judgment first.

Reasoning

Interlocutory judgment was entered on 29 January 2015 and the suit proceeded to formal proof on 11 June 2018 in the Defendants' absence. The Defendants only filed a Statement of Defence on 10 December 2018 without leave. The court, citing Order 10 Rule 11, held the application to recall witnesses premature and advised setting aside the judgment first.

Legal principles established

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  • Where interlocutory judgment has been entered, an application to recall witnesses is premature; the defendant must first apply to set aside the judgment under Order 10 Rule 11.

Court orders

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  1. 1.The Notice of Motion application dated 16th October 2019 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3
  • Civil Procedure RulesOrder 40(1)(a); Order 18 rule 10; Order 10 Rules 6, 9, 10 and 11; Order 19 Rule 2(1) and (2)
  • Law of Evidence ActSection 146(4)
  • Constitution of KenyaArticle 50

Cases cited (1)

  • Oriental Five and General Assurance Ltd V Gorinder & Others
    CA 39/1968 (1969) EA 116
Jurisdiction invoked
Sections 1A, 1B and 3 of the Civil Procedure Act and Order 40(1)(a) of the Civil Procedure Rules

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, "Wikio Investment Company Limited v Purity Kimwati Ikayo & another [2020] KEELC 2492 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2492/eng@2020-05-14

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