Musyimi & 2 others v Muriuki & another (Environment & Land Case 1042 of 2015) [2022] KEELC 2880 (KLR)
The bottom line
#A Kenyan court ruled that an honest mistake by a witness deserves a chance to correct it, not punishment or having their evidence thrown out.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction and criteria for recalling a witness for re-examination
The criteria were met: the plaintiff's case was not closed, no prejudice would arise, and the evidence on the date of death of the advocate who handled the transfer may probably bear on adjudication of title
Section 146(4) of the Evidence Act and Order 18 Rule 10 of the Civil Procedure Rules confer the power. Commonwealth principles require judicious exercise: absence of prejudice, no gap-filling, no inordinate delay, due diligence, probable important influence on the result, and apparent credibility. Since neither side had closed its case and the evidence concerns the process of acquiring valid title to land, recall was justified.
Whether PW-3 committed perjury by giving false evidence on the date of death
The plaintiff did mislead the court on the date of death, but it was a genuine, confessed mistake, not a wilful lie warranting perjury findings
The court found the witness did mislead the court on the date of death, and the verifying affidavit meant he could not feign ignorance of the plaint's contents. However, he confessed the error, showed remorse and willingness to be recalled, and the error was a mix-up of dates; citing him for perjury for a genuine mistake would be draconian and unnecessary since recall would cure the anomaly.
Whether PW-3's evidence of 28/10/2021 should be struck out
Rejected; the evidence remains on record and the witness will be re-examined on the date of death
Striking out is a draconian remedy. The 1st defendant had not rebutted the bulk of the testimony on fraudulent acquisition, and the defect could be cured by recall and re-examination on the date of death only. Following the equity approach in Chemowolo and Salat, lapses causing no prejudice should be rectified, not punished by striking out.
Legal principles established
#- The jurisdiction to recall a witness is discretionary and is guided by principles: no prejudice to the opposite party, no filling of evidentiary gaps, no inordinate unexplained delay, reasonable diligence, probable important influence on the result, and apparent credibility of the evidence
- A genuine mistake by a party or witness should be rectified rather than punished where it causes no prejudice; procedural lapses not going to the root of the dispute should not attract draconian sanctions like striking out
Court orders
#- 1.The 1st defendant's prayer to recall Mr Onsando Osiemo to be re-examined on the witness statement he presented and made before the court on 28/10/2021 is granted
- 2.Prayers iv (finding that PW-3 wilfully gave false evidence), v (striking out the evidence) and vi (finding of perjury and six months' imprisonment) are declined
- 3.The plaintiff shall pay the 1st defendant's throwaway costs of Kshs 20,000 before the next hearing date
- Jurisdiction invoked
- Inherent and case-management powers under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 18 Rule 10 and Order 51 of the Civil Procedure Rules, and Section 146(4) of the Evidence Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musyimi & 2 others v Muriuki & another (Environment & Land Case 1042 of 2015) [2022] KEELC 2880 (KLR)", Case Analysis (2022). not_stated_in_judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2880/eng@2022-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.