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ELCDismissedEnvironment & Land Case 228 of 2018· [2023] KEELC 17947 (KLR)

Oludhe & 2 others (All Suing as the Administrators of The Estate of Jackson Oludhe Aloo - Deceased) v Benken Enterprises Limited & another

Environment and Land Court
8 June 2023
LMLucy N. Mbugua
1,192 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to re-open a plaintiff's case, confirming that recalling witnesses is a discretionary favour, not a right.

What this practically means

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Executive summary

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This is a ruling delivered in the course of an ongoing trial in an Environment and Land Case at Nairobi, in which the plaintiffs, administrators of the estate of Jackson Oludhe Aloo, sued Benken Enterprises Limited and the Government Land Registrar. The plaintiffs' case was closed on July 18, 2022. The 1st defendant, through its director Isaiah Kandie Kangogo, applied by notice of motion dated January 17, 2023 to re-open the plaintiff's case so that documents at pages 28-57 of the consolidated bundle could be admitted and the 1st plaintiff (Pw1) recalled for further cross-examination and re-examination. The 1st defendant contended that its counsel, Mr Osundwa, never had the chance to cross-examine Pw1 because Mr Ashioya, who held brief on July 8, 2022, lacked instructions. The plaintiffs opposed, showing the July 18, 2022 date had been fixed since January 19, 2022 and that no illness or incapacity was ever communicated. The Attorney General filed nothing. Justice LN Mbugua framed a single issue: whether the court should allow the recalling of the plaintiff's case for cross-examination and re-examination. Relying on Section 146(4) of the Evidence Act and the Supreme Court's decision in Raila Odinga v IEBC, the court held that re-opening a case is discretionary, not a right. The record showed Pw1 had already been cross-examined at length by Mr Osundwa on January 19, 2022, and on July 8, 2022 Mr Ashioya gave no indication of illness, seeking an adjournment instead for the defence's own reasons. The court found the application was designed to scuttle and distort the proceedings of July 8, 2022, particularly the last-adjournment order, and invoked Article 159(2)(b) and Sections 1A and 1B of the Civil Procedure Act on expeditious disposal. The application was dismissed with costs to the plaintiffs.

Key legal issues

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Whether the court should recall Pw1 for further cross-examination and re-open the plaintiff's case

Holding

Application dismissed; Pw1 had already been cross-examined at length and the application was an attempt to distort the record of July 8, 2022

Reasoning

Section 146(4) of the Evidence Act permits recall of a witness, but the power is discretionary and exercised in the interest of justice on the merits. The court record showed Pw1 testified on January 19, 2022 and was cross-examined at length by Mr Osundwa. On July 8, 2022, Mr Ashioya holding brief gave no indication that Mr Osundwa was ailing; instead he sought an adjournment for the defence's own reasons. The court had granted a last adjournment, and allowing recall would distort those proceedings. The overriding objective under Article 159(2)(b) and Sections 1A and 1B of the Civil Procedure Act favours expeditious disposal.

p. 3

Legal principles established

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  • Re-opening a case is an exercise of judicial discretion on the merits in the interest of justice, not a matter of right

Court orders

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  1. 1.Application dated January 17, 2023 dismissed
  2. 2.Costs of the application to the plaintiffs

Authorities

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Legislation

  • Evidence ActSection 146(4)
  • Civil Procedure ActSection 1A(3)
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(b)

Cases cited (1)

  • Raila Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others
    [2013] eKLR

    Court may allow or refuse further affidavits or additional evidence; it is not a matter of right

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; Article 159(2)(b) of the Constitution and Sections 1A and 1B of the Civil Procedure Act invoked

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, "Oludhe & 2 others (All Suing as the Administrators of The Estate of Jackson Oludhe Aloo - Deceased) v Benken Enterprises Limited & another", Case Analysis (2023). Environment & Land Case 228 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17947/eng@2023-06-08

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