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ELCPartially AllowedOriginating Summons (filed 5 November 2009) - number not stated in judgment· [2020] KEELC 3849 (KLR)

Kabu Mumba & 11 others v Pwani Jezozhum Co.Ltd & 6 others [2020] KEELC 3849 (KLR)

Environment and Land Court
29 January 2020
MSMunyao Sila
1,243 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed a defendant in a land case to replace a witness who died, so both sides still get a fair hearing.

What this practically means

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Executive summary

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This was an interlocutory application dated 7 August 2019 by the defendant in an adverse possession Originating Summons filed on 5 November 2009, in which the plaintiffs claimed 350 acres comprising land parcel No. 830/II/MN. The defendant sought variation of the order of 12 February 2019 to substitute witnesses and leave to file a further witness statement, list and bundle of documents. The suit's defence had rested on the replying affidavit of Newton Kogi Kiburi, a director, who was disclosed as chronically ill when adjournment was granted in February 2019; counsel later stated from the bar that he died on 30 September 2019. The plaintiffs opposed through grounds of objection, contending that the application was an abuse of process and unprocedural, and, in submissions, that the new statement and bundle would introduce new evidence and cause them prejudice since they had closed their case. The court allowed substitution, reasoning that without it the defendant would be technically shut out from presenting its case, which would lead to injustice. Comparing Onyango's witness statement with Kiburi's affidavit, the court found no material difference in the line of defence or the documents annexed, and held the plaintiffs would suffer no prejudice or ambush even from a few additional documents. The application was allowed in its entirety, with the court making no orders as to costs. The judgment was delivered at Mombasa on 29 January 2020 by Munyao Sila, Judge.

Key legal issues

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01

Substitution of a deceased witness

Holding

Substitution was allowed because without it the defendant could not present its defence at all

Reasoning

The original witness, Newton Kogi Kiburi, was disclosed as chronically ill when adjournment was sought in February 2019 and was later stated to have died on 30 September 2019. The court reasoned that the only means by which the defendant could present its case was through substitution; refusing it would technically shut the defendant out and cause injustice. The court also noted the plaintiffs' objections went beyond their grounds of opposition.

p. 2
02

Admission of new witness statement and documents

Holding

The new statement and documents were allowed as they mirrored the deceased witness's affidavit and caused no prejudice

Reasoning

The court compared Onyango's witness statement with Kiburi's replying affidavit and found little difference, with the same line of defence and substantially the same annexed documents. Any additional documents would not prejudice or ambush the plaintiffs. The court therefore saw no reason to prevent Onyango testifying on his own statement and bundle.

p. 3

Legal principles established

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  • A party must generally be allowed to substitute a witness who is chronically ill or deceased, otherwise the party is shut out and injustice results
  • Substituted witness evidence and documents occasion no prejudice where they follow the substance of the earlier affidavit and are not an ambush

Court orders

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  1. 1.Leave granted to substitute the deceased defence witness with Nimrod Hellon Onyango
  2. 2.Mr. Onyango allowed to testify on the basis of his own witness statement and bundle of documents
  3. 3.No orders as to costs
Jurisdiction invoked
Not stated in the judgment

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, "Kabu Mumba & 11 others v Pwani Jezozhum Co.Ltd & 6 others [2020] KEELC 3849 (KLR)", Case Analysis (2020). Originating Summons (filed 5 November 2009) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3849/eng@2020-01-29

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