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ELCOtherEnvironment and Land Case Civil Suit 529 of 2018· [2022] KEELC 13445 (KLR)

Kibuna v City Council of Nairobi & 4 others

Environment and Land Court
6 October 2022
LMLucy N. Mbugua
466 words in judgment
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The bottom line

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A Kenyan court barred cross-examination based on a witness statement that had been replaced, protecting parties from questions about abandoned evidence.

What this practically means

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Executive summary

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This is an interlocutory ruling by the Environment and Land Court at Nairobi (LN Mbugua, J) in a land suit between Jedidah Ngina Kibuna (plaintiff) and five defendants, including the City Council of Nairobi. The dispute before the court was narrow: counsel for the 1st defendant objected to cross-examination of PW1 by counsel for the 2nd defendant on the contents of the 1st defendant's witness statement sworn by one Abwao Erick, which had been substituted pursuant to an application allowed by the court on 22 July 2021. Counsel for the 2nd defendant countered that the substituted statement had never been expunged from the record, that cross-examination is wide in scope, and that in the interest of justice PW1 should be cross-examined on it. The court cited Law Society of Kenya v Faith Waigwa & 8 others [2018] eKLR on the rationale of cross-examination as a mechanism to extract qualifying facts left out in examination in chief. While acknowledging the great latitude enjoyed by a cross-examiner, the court held that cross-examining PW1 on a statement that the 1st defendant will not rely on at trial would be prejudicial to the 1st defendant, whose opportunity to clarify would be limited or non-existent. The objection was upheld and PW1 was barred from being cross-examined on the contents of the previous statement. No costs order was made.

Key legal issues

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01

Scope of cross-examination in relation to a substituted witness statement

Holding

Cross-examination of PW1 on the 1st defendant's previous witness statement is disallowed because the statement was substituted and will not be relied on at trial

Reasoning

The court accepted that a cross-examiner enjoys great latitude, citing Law Society of Kenya v Faith Waigwa on the rationale of cross-examination. However, since the 1st defendant's statement was substituted by an application allowed on 22.7.2021 and will not be relied upon at trial, cross-examining PW1 on its contents would be prejudicial, as the opportunity to clarify would be limited or non-existent. The objection was therefore upheld.

p. 2

Legal principles established

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  • Cross-examination, though wide in latitude, may not be founded on a witness statement that has been substituted and will not be relied upon at trial, as that would prejudice the party whose statement it was

Court orders

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  1. 1.The objection by counsel for the 1st defendant is upheld
  2. 2.PW1 shall not be cross-examined on content captured in the previous (substituted) witness statement of the 1st defendant

Authorities

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Cases cited (1)

  • Law Society of Kenya v. Faith Waigwa & 8 others
    [2018] eKLR

    Rationale of cross-examination - a mechanism to bring out desirable facts or clarify testimony given in chief

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (suit pending trial; interlocutory ruling)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kibuna v City Council of Nairobi & 4 others", Case Analysis (2022). Environment and Land Case Civil Suit 529 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13445/eng@2022-10-06

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