Nurani & another (Suing as the Legal Administrators ofthe Estate of Sadrudin Shamsudin Ismail Nurani) v Gulam & 2 others (Environment & Land Case 596 of 2014) [2022] KEELC 3492 (KLR)
The bottom line
#A Nairobi court refused to let a land defendant recall a witness on old documents, ruling parties must present their full case the first time.
What this practically means
#Executive summary
#Key legal issues
#Discretion to recall a witness under section 146(4) of the Evidence Act and Order 18 Rule 10 of the Civil Procedure Rules
The discretion exists at any stage of the suit but must be exercised judiciously and sparingly; the party seeking recall must show reasonable diligence and absence of prejudice.
The court traced the statutory powers and noted the developed principles: parties must bring forward their whole case during trial, re-opening is an extreme measure, and recall should not be allowed where evidence was available with due diligence or where the purpose is to fill gaps. Accountability of parties for how they prosecute their cases must be balanced against the interest of justice.
Whether lack of due diligence and absence of the impugned document from the court record barred the recall of PW2
Recall was refused because the 2nd Defendant knew or ought to have known of HCCC No. 393 of 2003 (having relied on it in a 2019 amendment application and cross-examined PW2 on it), and the impugned 2006 affidavit was never filed in this suit.
The record showed the 2nd Defendant was aware of HCCC No. 393 of 2003 as early as 2019 and cross-examined PW2 extensively on that suit, during which PW2 herself referred to Mr. Jirongo's affidavit confirming the sale. Allowing recall on an affidavit not before the court would prejudice the Plaintiffs and permit a party to litigate in instalments.
Legal principles established
#- Re-opening a case or recalling a witness is an extreme measure allowed sparingly; it will not be permitted where the evidence could have been adduced originally with reasonable diligence or where it is intended to fill gaps in evidence.
- The discretion to recall a witness is judicial and requires balancing party accountability for case presentation against the interest of justice.
Court orders
#- 1.The 2nd Defendant's Notice of Motion dated 1st April, 2022 is dismissed
- 2.Costs of the application are awarded to the Plaintiffs (dismissed with costs)
- Jurisdiction invoked
- Inherent jurisdiction and section 146(4) of the Evidence Act read with Order 18 Rule 10 of the Civil Procedure Rules (recall of a witness at trial)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nurani & another (Suing as the Legal Administrators ofthe Estate of Sadrudin Shamsudin Ismail Nurani) v Gulam & 2 others (Environment & Land Case 596 of 2014) [2022] KEELC 3492 (KLR)", Case Analysis (2022). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3492/eng@2022-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.