Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the excerpt (application dated November 9, 2021 within a civil suit)· [2022] KEELC 3956 (KLR)

Eugefreight Travel & Tours Limited v Souza & another (Environment & Land Case E082 of 2021) [2022] KEELC 3956 (KLR)

High Court of Kenya (Environment and Land division inferred from suit property dispute; judgment does not state division)
4 August 2022
EWE. K. Wabwoto
2,089 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The plaintiff/applicant, by a notice of motion dated November 9, 2021, sought to re-open the discovery process and call for the file in Succession Cause No 2751 of 1999 (Nairobi), to summon Brian Charles Cyril D'Souza to testify, to have the DCI probe the identity of the 1st defendant, and for leave to file a further bundle of documents and witness statements. The applicant claimed to have purchased LR 1008/16 in 2004 for Ksh 28,000,000 from Maria Basilia Nunes and Brian D'Souza as executor of the estate of Franklin D'Souza, who died testate in Toronto on August 1, 1999; it argued the 1st defendant was masquerading as the deceased. The 1st defendant opposed, contending the court would cease to be a neutral arbitrator and that the requirements of section 34 of the Evidence Act for admitting previous proceedings' evidence were unmet. The court framed four issues. It declined to expunge the supplementary afidavit, having been filed with leave and introducing no new issues. It refused to re-open discovery or call for the succession file, holding that a claimant must file all documents with the plaint and that the court, as an impartial umpire, cannot help a party procure evidence. It refused to direct the DCI to investigate. However, it allowed witness summons against Brian Charles Cyril D'Souza and granted both sides 30 days to file further bundles, with late documents to be expunged. Each party was to bear its own costs. The application partially succeeded.

Key legal issues

#
01

Whether the supplementary afidavit should be expunged

Holding

The afidavit was properly on record; it introduced no new issues

Reasoning

The applicant had been granted leave on February 8, 2022 to file the supplementary afidavit. The annexures (letters, emails, power of attorney) related to correspondence on existing facts. Expunging it would be draconian to the applicant, so the objection failed.

p. 4
02

Whether the court can re-open discovery and call for the succession file

Holding

Refused; adversarial system requires parties to avail their own evidence before trial

Reasoning

Order 3 rule 2 CPR requires a claimant to file all evidentiary documents with the plaint. The applicant sought to procure more evidence to the prejudice of the respondent. None of the parties to the suit were parties to the succession cause, and section 34 Evidence Act requirements were not met.

p. 4
03

Whether summons can issue to Brian Charles Cyril D'Souza

Holding

Granted; witness summons may issue at a party's request

Reasoning

The court is clothed with wide discretion and may issue witness summons where requested by a party. Brian Charles Cyril D'Souza, holder of the power of attorney from the beneficiaries, may be summoned to attend trial, give evidence and produce documents.

p. 4
04

Whether the court can direct the DCI to investigate the identity of the respondent

Holding

Refused; no proper basis laid

Reasoning

The court, as an impartial umpire, cannot direct investigations on behalf of a party. The applicant had not first sought the assistance of the DCI before approaching the court, and compelling an entity to prepare investigative reports in a civil suit is inconsistent with the court's mandate.

p. 4

Legal principles established

#
  • A claimant must file with the suit all documents intended to be relied on at trial; a court as impartial umpire will not help a party procure evidence to its advantage
  • A court may issue witness summons at the request of a party, but compelling an entity to prepare investigative reports in a civil suit is inconsistent with its impartial role

Court orders

#
  1. 1.Witness summons be issued to Brian Charles Cyril D'Souza to attend trial and give evidence
  2. 2.Plaintiff granted leave to file and serve a further bundle of documents and witness statements within 30 days
  3. 3.Defendants granted leave to file and serve their further bundle within 30 days of being served
  4. 4.Failure to comply with orders (ii) and (iii), parties deemed to have waived right to file additional documents; late documents to be expunged
  5. 5.Each party to bear their own costs of the application

Authorities

#

Legislation

  • Evidence Actsection 34
  • Civil Procedure Act/RulesOrder 3 rule 2
  • Civil Procedure RulesOrder 4 rule 1(2)
  • Civil Procedure RulesOrder 11
  • Civil Procedure RulesOrder 16

Cases cited (4)

  • Frankline Matata Mwagona v Boniface Kalama
    [2019] eKLR Civil Appeal No 31 of 2016
  • Andrew Omtata Okoiti v AG & Others
  • Prof Njuguna S Ndungu vs EACC and Others
    [2014] eKLR
  • North River Insurance Company v Walker
    170 S W Rep 983 (Ky. 1914)
Jurisdiction invoked
Inherent jurisdiction and Civil Procedure Rules (Order 16 on witness summons; Order 3 rule 2; Order 11) in a first-instance civil suit

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Eugefreight Travel & Tours Limited v Souza & another (Environment & Land Case E082 of 2021) [2022] KEELC 3956 (KLR)", Case Analysis (2022). Not stated in the excerpt (application dated November 9, 2021 within a civil suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3956/eng@2022-08-04

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