AI-generated case brief

Case Brief · caselaw.co.ke

ELCDismissedEnvironment & Land Case 1321 of 2005 & Environment and Land Case Civil Suit 424 & 437 of 2011 (Consolidated)· [2023] KEELC 16481 (KLR)

Ngugi & another v Fear & 4 others

Environment and Land Court

21 March 2023

MMMD Mwangi

1,526 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~6 min to read original · ~4 min brief

The bottom line

A Kenyan court confirmed you can fight a land case through witnesses without personally testifying first.

What this practically means

Executive summary

This interlocutory ruling of the Environment and Land Court at Nairobi (MD Mwangi J, 21 March 2023) arose in consolidated land suits when, at the hearing, the 2nd Defendant's advocate objected to the plaintiffs' proposed first witness. He argued that the rules of procedure required the plaintiffs to testify first and lay the basis of their case before calling other witnesses, and further objected that the proposed witness, a serving Chief Inspector of Police instructed by the Director of Public Prosecutions, should not be used as a witness in a civil case. He urged the court either to dismiss the suit or adjourn it. Counsel for the plaintiffs (Mr Kiragu Kimani) and for the 4th and 5th Defendants (Mr Allan Kamau) opposed, submitting there is no rule requiring a plaintiff to testify first, that there is no property in a witness, that section 125 of the Evidence Act makes all persons competent witnesses, and that the order of calling witnesses is the preserve of the party. The court framed two issues: whether plaintiffs must testify first, and whether a serving criminal investigation officer may testify in a civil case. Applying the Court of Appeal decision in Julianne Ulrike Stamm v Tiwi Beach Hotel Ltd and section 125 of the Evidence Act, the court held that a plaintiff need not personally testify and may prove his case through witnesses, a recognized agent or an advocate, and that serving investigating officers are competent civil witnesses. The objection was rejected; the plaintiffs were left free to call witnesses in their preferred order. No costs order was made.

Key legal issues

Whether a plaintiff must testify first before calling other witnesses

Holding

No; a plaintiff may prove his case through witnesses, a recognized agent or an advocate, and the order of calling witnesses is the party's preserve

Reasoning

The court held that representation by a recognized agent or advocate is permissible, and a party may discharge the burden of proof through witnesses other than itself. The Court of Appeal decision in Julianne Ulrike Stamm v Tiwi Beach Hotel Ltd was applied. Order 18 of the Civil Procedure Rules governs only which party has the right to begin, not the sequence of a party's own witnesses.

p. 4

Whether a serving Criminal Investigation Officer can testify in a civil case

Holding

Yes; section 125 of the Evidence Act makes all persons competent witnesses and does not exclude serving public or investigating officers

Reasoning

Section 125 of the Evidence Act provides that all persons shall be competent to testify unless prevented from understanding questions or giving rational answers by tender years, extreme old age, disease or similar cause. The phrase 'any persons' does not exclude serving public officers or criminal investigating officers. No contrary authority was cited by the objector.

p. 4

Legal principles established

A plaintiff is not obligated to personally testify first; a party may prove its case through other witnesses or a recognized agent or advocate
Serving public officers and criminal investigating officers are competent witnesses in civil cases under section 125 of the Evidence Act

Court orders

1.The plaintiffs are at liberty to call any witness they wish in the order they deem appropriate to their case

Authorities

Legislation

Civil Procedure RulesOrder 18 rule 1
Evidence ActSection 125

Cases cited (3)

Aden Muktar v County Government of Garissa
Cited by 2nd Defendant's counsel on whether experts can testify before the plaintiff
Julianne Ulrike Stamm v Tiwi Beach Hotel Ltd
(1988) eKLR
That a plaintiff can prove his case through his witness(es) without personally testifying
Sofie Feis Caroline Lwangu v Benson Wafula Ndote
(2022) eKLR
Support for the plaintiffs' position on the order of witnesses

Jurisdiction invoked: Original civil jurisdiction of the Environment and Land Court over land disputes (consolidated suits)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Ngugi & another v Fear & 4 others", Case Analysis (2023). Environment & Land Case 1321 of 2005 & Environment and Land Case Civil Suit 424 & 437 of 2011 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16481/eng@2023-03-21

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