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ELCAllowed· [2023] KEELC 372 (KLR)

Kimani & 62 others v Kimuri Housing Company Limited & another (Environment & Land Case 179 of 2019) [2023] KEELC 372 (KLR)

Environment and Land Court
24 January 2023
BEB M Eboso
1,142 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed a plaintiff to call back a witness to identify new documents, showing courts will permit recalls when no one is unfairly prejudiced.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Thika (B M Eboso, J) on the outstanding limb of the plaintiff's notice of motion dated 26/10/2022 seeking to recall the plaintiff's witness, PW1. During trial, the Land Registrar testified as DW1, following which the plaintiff's counsel applied for an adjournment, alleging forgery had emerged from the Registrar's evidence; the adjournment was granted. The plaintiff then filed a motion seeking leave to file and produce additional documentary evidence and to recall PW1 and the Land Registrar. On 16/11/2022 the parties recorded a partial consent allowing the filing of two additional documents (a National Bank account statement and customer transaction receipts), their production by their makers, and cross-examination of the Land Registrar, leaving only the recall of PW1 for determination. The 1st defendant opposed, arguing PW1 was not the maker of the documents and the recall was a waste of time aimed at filling evidentiary gaps. The court held that neither the Evidence Act nor the Civil Procedure Rules sets an express framework, but courts require an applicant to show the evidence could not have been obtained with reasonable diligence at the time of testimony. Finding the plaintiffs' case not closed, the document makers to be called by consent, the purpose legitimate and no prejudice demonstrated, the court allowed the recall of PW1 solely to identify the two documents and lay a nexus, with costs in the cause.

Key legal issues

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01

Criteria for recall of a witness under section 146(4) of the Evidence Act and Order 18 rule 10 of the Civil Procedure Rules

Holding

The criteria for recall were satisfied: the plaintiffs' case was not closed, the makers of the additional documents were to be called, the purpose was to identify the documents and lay a nexus, and no prejudice was demonstrated by the defence.

Reasoning

The court noted that neither the Evidence Act nor the Civil Procedure Rules provides an express framework for recall, but courts have developed principles requiring the applicant to show the evidence could not have been obtained with reasonable diligence. Applying those principles, the court found the purpose legitimate, the recall limited to identification and nexus, the makers to be called by consent, and no prejudice to the defence who retain cross-examination rights.

p. 3

Legal principles established

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  • An applicant seeking to recall a witness must demonstrate that the evidence sought to be introduced through the recall could not have been obtained with reasonable diligence at the time of the testimony of the witness.
  • Recall of a witness may be allowed where the case is not closed, the maker of the documents is being called, the purpose is legitimate and no prejudice is demonstrated; the opposing party retains the right to cross-examine.

Court orders

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  1. 1.The plaintiffs are granted leave to recall PW1 for the purpose of identifying the two additional documents and demonstrating the nexus between the plaintiffs' case and the two additional documents
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Evidence ActSection 146(4)
  • Civil Procedure RulesOrder 18 rule 10

Cases cited (4)

  • Victoria Naiyonoi Kiminta v Gladys Kiminta Prinsloo
    [2009] eKLR
  • Mohamed Abdi Mohamud v Ahmed Abdullahi Mohamed & others
    [2018] eKLR
  • Samuel Kiti Lewa v Housing Finance Company of Kenya Limited & another
    [2015] eKLR
  • Ladd v Masall
    [1954] 3 All ER 745
Jurisdiction invoked
Section 146(4) of the Evidence Act and Order 18 rule 10 of the Civil Procedure Rules

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, "Kimani & 62 others v Kimuri Housing Company Limited & another (Environment & Land Case 179 of 2019) [2023] KEELC 372 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/372/eng@2023-01-24

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