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ELCOtherNot stated in the judgment provided· [2021] KEELC 21 (KLR)

Sandy Creek Holdings Limited v Hewa Bora Limited & another [2021] KEELC 21 (KLR)

Environment and Land Court
25 November 2021
ADADDRAYA EDA DENA
469 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to summon an advocate as an 'officer of the court', confirming parties must gather and call their own witnesses in civil cases.

What this practically means

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Executive summary

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This is an interlocutory ruling delivered in a partly heard land dispute fixed for physical hearing in Kwale on 16th November 2021. The Plaintiff, having testified through Christopher Erick Githaiga Notingham, sought a witness summons to compel Mr. Gitau Gikonyo, the advocate who had acted for both parties in the conveyance of the suit property, to testify. Counsel explained that Mr. Gikonyo was unwilling to sign a witness statement, as doing so would appear to take sides, would conflict with advocate-client confidentiality, and preferred to appear as an officer of the court. Defence counsel objected, alleging ambush, since no witness statement had been filed. The court declined the request. It noted that the dispute turned on a sale agreement whose authenticity was not denied and which appeared plain and simple, giving no evident reason to call the advocate. The court held that in a civil matter parties must marshal their own witnesses and evidence, and that it must remain impartial and neutral, deciding only on the evidence, facts and law before it. Since counsel cited no legal basis for summoning a witness as an officer of the court, the request was refused, though the Plaintiff remained free to call the advocate as a witness. Further hearing was directed to be fixed at the registry on a priority basis. No costs order was made and no authorities were cited.

Key legal issues

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01

Whether the court can summon an advocate who acted for both parties to give evidence as an officer of the court

Holding

The request was declined because no legal basis was cited for summoning a witness as an officer of the court, and the sale agreement's authenticity was not disputed

Reasoning

The court observed that the dispute rests on a sale agreement whose authenticity neither party denied and which appeared plain and simple, so the advocate's evidence was unnecessary. In civil litigation, parties must marshal their own witnesses and evidence; the court must remain impartial and neutral, determining the dispute only on the evidence, facts and law placed before it. The Plaintiff remained free to call the advocate as a witness if it chose.

p. 2

Legal principles established

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  • In a civil matter, parties are expected to use their best efforts to marshal their own witnesses and evidence; the court remains impartial and decides on the evidence and law placed before it

Court orders

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  1. 1.The Plaintiff's request for a witness summons for Mr. Gitau Gikonyo is declined
  2. 2.A date for further hearing to be fixed at the registry on a priority basis, this being a partly heard matter
Jurisdiction invoked
Original civil jurisdiction over a dispute concerning a sale agreement relating to suit property (specific provision not cited in the ruling)

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, "Sandy Creek Holdings Limited v Hewa Bora Limited & another [2021] KEELC 21 (KLR)", Case Analysis (2021). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/21/eng@2021-11-25

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