Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the extract· [2022] KEELC 3492 (KLR)

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)

Environment and Land Court
19 May 2022
2,478 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

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

#
This is a ruling of the Environment and Land Court at Nairobi (O. A. Angote, Judge) on a Notice of Motion dated 1st April 2022 by the 2nd Defendant in a suit where the Plaintiffs seek a declaration that the sale and transfer of land parcel 1160/230 by the 1st Defendant (administrator of their deceased father's estate) to the 2nd Defendant was fraudulent, and rectification of the register. The 2nd Defendant sought to recall PW2, the 1st Plaintiff Farrah Sadrudin Nurani, for further cross-examination on affidavits she allegedly swore in 2005 and 2006 in High Court Civil Case No. 393 of 2003, contending she had misled the court by denying knowledge of the suit property and its sale. The Plaintiffs opposed, arguing the application was late, aimed at delaying trial, sought to re-open case management midstream, relied on documents not in the pre-trial bundle, and that the court lacked jurisdiction to admit such documents. The court held that although section 146(4) of the Evidence Act and Order 18 Rule 10 of the Civil Procedure Rules empower it to recall a witness at any stage, the discretion is judicial and recall should be allowed sparingly, never to fill gaps in evidence. The record showed the 2nd Defendant had known of HCCC No. 393 of 2003 since 2019, had cross-examined PW2 extensively on it, and that PW2 had herself referred to Mr. Jirongo's affidavit confirming the sale. The impugned affidavit was not a document filed in this suit. The court found no proper basis for recall and dismissed the application with costs on 19th May 2022.

Key legal issues

#
01

Discretion to recall a witness under section 146(4) of the Evidence Act and Order 18 Rule 10 of the Civil Procedure Rules

Holding

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.

Reasoning

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.

p. 4
02

Whether lack of due diligence and absence of the impugned document from the court record barred the recall of PW2

Holding

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.

Reasoning

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. 1.The 2nd Defendant's Notice of Motion dated 1st April, 2022 is dismissed
  2. 2.Costs of the application are awarded to the Plaintiffs (dismissed with costs)

Authorities

#

Legislation

  • Evidence Actsection 146(4)
  • Civil Procedure RulesOrder 18 Rule 10
  • Law of Succession Actobligations of a legal representative (referenced in the Plaint)

Cases cited (1)

  • Samuel Kiti Lewa vs Housing Finance Company Limited & Another
    [2015] eKLR
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.