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ELCOtherNot stated in extract· [2022] KEELC 1677 (KLR)

Saadiya Sheikh Muhiddin & another v Nessen Salim Karama & another [2022] KEELC 1677 (KLR)

Environment and Land Court
9 February 2022
LNL. L. Naikuni
2,041 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Mombasa ruled that a witness sitting in court during other testimony is not automatically disqualified if no bias or injustice is shown.

What this practically means

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Executive summary

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During the further hearing of the Defence case in a land suit before the Environment and Land Court at Mombasa, after DW-2 testified, counsel for the 1st Defendant indicated an intention to call Mr. Edward K. Kiguru, a registered land surveyor, as DW-3. Plaintiff's counsel objected on the ground that the proposed witness had sat in open court throughout DW-2's testimony, contending this contravened the Evidence Act and would bias his evidence. Counsel for the 1st Defendant opposed, stressing that the surveyor's report was pivotal and that excluding him would leave the defence an empty shell, while the plaintiff could cross-examine. The court framed one issue: whether a witness physically present during other witnesses' evidence should be disqualified. Observing that Kenyan jurisprudence on the point is sparse in civil matters, the judge reviewed authorities on disqualification of advocates, repealed criminal procedure provisions, Scottish textbook authority (Fraser P. Davidson) noting expert witnesses may attend unless objected to, and the English decision in Luckwell v Limata. The court held exclusion is discretionary, particularly in civil cases, and in the age of virtual proceedings and instant communication a total ban on witnesses present in court is unsustainable. The plaintiff showed no culpable negligence, undue influence or injustice, and retained the right to cross-examine the expert, who owes the court independent and objective evidence. The objection was dismissed with no order as to costs.

Key legal issues

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01

Whether a witness who sat in court during another witness's testimony should be disqualified

Holding

The objection was dismissed; the court has discretion to admit such a witness, particularly an expert, absent demonstration of culpable negligence, undue influence or injustice

Reasoning

The court adopted common law authority that presence in court does not automatically disqualify a witness; the objecting party must show culpable negligence or undue influence. Expert witnesses owe a duty of independence to the court, and the plaintiff retained full right of cross-examination, so no prejudice arose.

p. 2

Legal principles established

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  • Disqualification of a witness present in court during other evidence is a matter of judicial discretion, especially in civil cases

Court orders

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  1. 1.The objection by the Plaintiff's Counsel to disqualify Mr. Edward K. Kiguru as an expert witness was dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • The Evidence ActCap. 80
  • The Advocates (Practises) Rules of 1966Rule 8
  • Criminal Procedure RulesSections 282 to 290, Cap. 75

Cases cited (8)

  • CA – Delphis Bank Limited – Versus – Channan Singh Chatthe & 6 others
    (2005) eKLR
  • Ellis Maunday & Clarke
    (1912) CH 831
  • Mohan Galot & 5 Others – Versus – Kenya National Capital Corporation Limited
    (2016) eKLR
  • William Audi Ododa & Another – Versus – John Yier & Another
    CA no. Nai. 360 of 2004 (UR)
  • Aspire Limited – Versus – Zedra Technical Services Limited & Another
    (2021) eKLR
  • Uhuru Highway Development Limited & 3 Other – versus Central Bank of Kenya & 4 Others
    (2003) eKLR
  • Republic – Versus – Silas Mutuma Marimi & 2 Others
    (2016) eKLR
  • Luckwell – Versus - Limata
    [2014] EWHC 536
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Saadiya Sheikh Muhiddin & another v Nessen Salim Karama & another [2022] KEELC 1677 (KLR)", Case Analysis (2022). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1677/eng@2022-02-09

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