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ELCPartially Allowed· [2023] KEELC 117 (KLR)
Ngugi v Njuguna & 2 others (Environment & Land Case 737 of 2012) [2023] KEELC 117 (KLR)
Environment and Land Court (court not expressly named in the judgment as provided; delivered virtually at Nairobi by a Judge)
19 January 2023
1,067 words in judgment
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·~4 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#By a notice of motion dated May 25, 2022 supported by an affidavit of Agatha Wambui Macharia, the defendants sought to set aside and expunge all evidence adduced by the plaintiff and her witnesses on May 9, 2022, when they were absent, and to have the suit heard afresh on a date agreed by all parties. They alleged that the process server, Jacob Kinyili Joseph, never served their advocates, Kamata & Company, with the hearing notice dated February 10, 2022, and that the rubber stamp and writings on the notice were forged. They reported the alleged forgery to Central Police Station, and the process server was arrested and charged in Criminal Case E856 of 2022 (Chief Magistrate's Court, Milimani), though no DCI report confirming forgery was produced. The plaintiff opposed, maintaining that service was duly effected. On May 9, 2022 the plaintiff's witnesses had testified unchallenged and the defendants' case was closed. The court framed a single issue: whether the application was merited. Applying Order 18 rules 1 and 10 of the Civil Procedure Rules and section 146(4) of the Evidence Act, the court held that the discretionary power to recall witnesses should be exercised to uphold the principles of natural justice and the right to fair hearing. Noting the application was filed within three weeks of the close of the hearing and the diligence of defendants' counsel in pursuing the alleged forgery, the court allowed the application: the matter is to be heard on a mutually agreed date with all parties and witnesses present; the defendants' case is re-opened; and the plaintiff's witnesses are to be recalled for cross-examination and re-examination. Each party was ordered to bear its own costs of the application.
Key legal issues
#01
Whether the defendants' application to expunge the plaintiff's evidence and re-open the case was merited
Holding
The application was allowed: the defendants' case was re-opened and the plaintiff's witnesses were to be recalled for cross-examination and re-examination, rather than the evidence being expunged.
Reasoning
The court applied Order 18 rules 1 and 10 of the Civil Procedure Rules and section 146(4) of the Evidence Act, noting the discretionary power to recall witnesses. Balancing fairness, it held that natural justice and the right to fair hearing required that the defendants have an opportunity to cross-examine. The application was filed timeously, within three weeks of the close of the hearing, and defendants' counsel had diligently pursued an alleged forgery of the firm's rubber stamp, including reporting the process server to the police.
p. 2
Legal principles established
#- The court exercises discretionary powers when determining whether to re-open a case.
- A plea to re-open a case will not be granted where it is intended to fill gaps in the evidence or where there is inordinate and unexplained delay on the part of the applicant.
- Section 146(4) of the Evidence Act empowers the court, in all cases, to permit a witness to be recalled for further examination-in-chief or cross-examination, with corresponding rights of further cross-examination and re-examination.
Court orders
#- 1.This matter will be heard on a mutually agreed date and when all the parties and their witnesses are present to participate.
- 2.The defendants' case is hereby re-opened for hearing.
- 3.That the plaintiffs' witnesses be recalled for purposes of cross examination and re-examination.
- 4.Each party to bear own costs of the application.
- Jurisdiction invoked
- Original civil suit jurisdiction; application under the Civil Procedure Rules (Order 18) and section 146(4) of the Evidence Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngugi v Njuguna & 2 others (Environment & Land Case 737 of 2012) [2023] KEELC 117 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/117/eng@2023-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.