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ELCDismissedNot stated in the judgment (Petition dated prior to 24th October 2017)· [2021] KEELC 3698 (KLR)

Uathimo Farm Limited & another v Attorney General & 6 others & 10 others [2021] KEELC 3698 (KLR)

Environment and Land Court (High Court station at Makueni)
19 April 2021
1,446 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed you don't need to testify in person for a fair hearing—well-prepared sworn affidavits carry equal legal weight.

What this practically means

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Executive summary

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This ruling by Mbogo CG J at Makueni determines a notice of motion dated 20th July 2020 brought by the 8th Respondent/Applicant, Peter Kimanthi Maluki, under Rule 20(3) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. The Applicant sought review of the court's directions of 18th July 2019 that the main Petition be disposed of by written submissions without oral evidence, contending that those directions locked it out from adducing crucial viva voce testimony. The 1st Petitioner opposed, arguing that affidavit evidence enjoys the same status as oral evidence and that no prejudice or special grounds for an oral hearing were demonstrated. The sole issue was whether the 18th July 2019 directions should be varied. The court applied the Court of Appeal decisions in Daniel Kibet Mutai v Attorney General and Kibos Distillers v Benson Ambuti Adega, holding that affidavit evidence is legally admissible and occupies the same pedestal as oral evidence, and that a right to a fair hearing is not exclusively a right to be heard orally unless exceptional circumstances exist. Noting that the Applicant had been at liberty to file a supplementary affidavit since July 2019, failed to specify the evidence it wished to give, and did not disclose witnesses for cross-examination as Rule 20(4) requires, the court found no miscarriage of justice. The application was dismissed with costs to abide the outcome of the Petition.

Key legal issues

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01

Whether disposal of a petition by written submissions without viva voce evidence violates the right to a fair hearing

Holding

It does not; affidavit evidence is on the same pedestal as oral evidence and oral hearing is not an integral part of fair hearing save in exceptional circumstances

Reasoning

Relying on Court of Appeal authority in Daniel Kibet Mutai and Kibos Distillers, the court held that sworn affidavit evidence is legally admissible and equal to oral testimony. A right to be heard is not exclusively a right to be heard orally. The Applicant failed to show exceptional circumstances, did not identify the evidence it would give, and never disclosed witnesses for cross-examination as required by Rule 20(4).

p. 3
02

Whether the Applicant satisfied Rule 20(4) requirements to warrant oral evidence

Holding

No; the Applicant did not disclose the witnesses it sought to tender for cross-examination

Reasoning

The court noted the Applicant had been at liberty since 18th July 2019 to file a supplementary affidavit, was represented and served on the day directions issued, and failed to identify the nature of the evidence or witnesses it wished to call. Absent such disclosure, no miscarriage of justice arose from proceeding by affidavit evidence and submissions.

p. 3

Legal principles established

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  • Affidavit evidence occupies the same place as oral evidence in constitutional petitions and denial of oral hearing is not per se a breach of fair hearing

Court orders

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  1. 1.The application dated 20th July, 2020 is dismissed
  2. 2.Costs shall abide the outcome of the Petition

Authorities

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Legislation

  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 20(3), Rule 20(4)

Cases cited (6)

  • Peter M. Kariuki -Vs- Attorney General
    [2014] eKLR
  • Aggrey Chiteri -Vs- Republic of Kenya
    [2017] eKLR
  • Russell -Vs- Duke of Norfolk and Others
    [1949] 1 AllER 109
  • Daniel Kibet Mutai & 9 Others -Vs- Attorney General
    [2019] eKLR
  • Kibos Distillers Limited & 4 Others -Vs- Benson Ambuti Adega & 3 Others
    [2020] eKLR
  • Uathimo Farm Limited & Another -Vs- Attorney General & 7 Others
    [2019] eKLR
Jurisdiction invoked
Rule 20(3) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Uathimo Farm Limited & another v Attorney General & 6 others & 10 others [2021] KEELC 3698 (KLR)", Case Analysis (2021). Not stated in the judgment (Petition dated prior to 24th October 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3698/eng@2021-04-19

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