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ELCAllowed· [2020] KEELC 3653 (KLR)

Muchanga Investments Ltd v Habenga Holdings Ltd & 8 others; Barclays Bank of Kenya Ltd (interested Party) [2020] KEELC 3653 (KLR)

Environment and Land Court
23 January 2020
EOE. O. Obaga
897 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is an interlocutory ruling by the Environment and Land Court at Nairobi (E. O. Obaga, J) in an ongoing land suit. On 16th January 2020, counsel for the 3rd Defendant, Mr Kago, applied for witness summons to enable four further witnesses to testify after the evidence of the 3rd Defendant's second witness had concluded. Counsel for the 4th to 7th Defendants (Mr Kamau) and for the Plaintiff (Mr Wena) opposed the application, contending that under Order 16 of the Civil Procedure Rules such an application should have been made before the pre-trial conference, that the witnesses had not recorded statements, and that allowing them would ambush the parties and effectively re-open the Plaintiff's case, which had closed. The court reviewed the record and found that on 24th January 2019 the 3rd Defendant's then advocate, Mr Gikera, had already applied for summons against the same four witnesses - Patrick Maloba of DCI, Pauline Gitimu of Survey of Kenya, Wanderi Muiga, Land Registrar, and a Company Secretary of Barclays Bank (renaming to Absa Africa) - and that no objection was raised when the court first directed that the summons issue. The court accepted that Order 16 requires pre-trial applications, but observed that, due to heavy workload, Deputy Registrars no longer conduct substantive pre-trial conferences, merely confirming compliance with Order 11. Since eleven witnesses had been foreshadowed earlier without identities disclosed, it would be unfair to lock out the 3rd Defendant, and any ambush risk could be cured by directing exchange of witness statements. The court allowed the 3rd Defendant to call the four witnesses by summons, on a date to be fixed after a pending application is resolved.

Key legal issues

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01

Whether the application for witness summons after pre-trial under Order 16 must be rejected outright

Holding

No - the court may allow such witnesses where no proper pre-trial conference occurred and no prejudice would be suffered

Reasoning

Counsel for co-defendants argued the application was late and amounted to an ambush. The court noted the same witnesses had earlier been identified and summons sought by the 3rd Defendant's previous advocate, without objection. Given that Deputy Registrars no longer conduct substantive pre-trial conferences due to workload, strict Order 16 compliance could not be enforced; any risk of ambush could be cured by directing exchange of witness statements.

p. 2
02

Whether allowing the four witnesses would prejudice the opposing parties

Holding

No substantive prejudice was established; safeguards such as recording and disclosing statements could address any ambush concern

Reasoning

The witnesses were intended largely to produce documents already on record. If any were to give evidence, the court could direct that their statements be recorded and shared. The plaintiff's contention that allowing the witnesses would re-open its closed case was outweighed by the fact that eleven witnesses had been flagged earlier without identities disclosed, so the defendants could not be locked out.

p. 2

Legal principles established

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  • An application for witness summons should ordinarily be made before pre-trial under Order 16, but courts may dispense with strict compliance where no proper pre-trial conference took place.
  • A party should not be locked out of calling witnesses whose summons the court had already directed, where no objection was raised at the time and no prejudice is shown.

Court orders

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  1. 1.The 3rd Defendant is allowed to call the four witnesses by way of summons
  2. 2.The witnesses are to be heard on a date to be given by the court after a pending application is sorted out

Authorities

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Legislation

  • Civil Procedure RulesOrder 16
  • Civil Procedure RulesOrder 11
Jurisdiction invoked
Original civil jurisdiction (suit proceedings under the Civil Procedure Rules); no specific constitutional/statutory provision invoked

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, "Muchanga Investments Ltd v Habenga Holdings Ltd & 8 others; Barclays Bank of Kenya Ltd (interested Party) [2020] KEELC 3653 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3653/eng@2020-01-23

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