Shah v Shah (Environment and Land Case Civil Suit 114 of 2013) [2024] KEELC 3940 (KLR)
The bottom line
#Kenya's High Court allowed a deceased defendant's new witnesses, ruling an ex-advocate can testify and a second expert can replace one who has died.
What this practically means
#Executive summary
#Key legal issues
#Whether an advocate who has acted for a party may testify on that party's behalf
Rule 8 of the Advocates (Practice) Rules does not absolutely bar an advocate from giving evidence in a matter in which he acted; he must simply cease acting as advocate once it becomes apparent he will be a witness, subject to the proviso for formal or non-contentious matters.
The court read Rule 8 of the Advocates (Practice) Rules and noted the word 'may' is instructive. The second limb expressly allows an advocate who has been appearing in a matter to give evidence, with the only caveat being that once it becomes apparent the advocate will need to appear as a witness, they stop appearing for the client. The objection by the Plaintiff on this ground therefore did not defeat the application.
Whether a second expert witness may be called where the first expert is deceased
Yes. Given the death of the original expert, the court found it appropriate that another expert testify, notwithstanding the proviso to Order 3 Rule 2(c) on timing of expert reports.
The Plaintiff objected to a second expert report, arguing an expert report had already been filed. The court noted the proviso to Order 3 Rule 2(c) requires an expert report at least 15 days before the Trial Conference, but found the Defendant had laid a proper basis for the second report: the expert who prepared the earlier report was deceased. In those circumstances the application to have another expert testify was held to be in order.
Whether extension of time to file the amended list of witnesses and witness statements out of time was merited
Yes. The death of the Defendant and of the expert witness constituted sufficient grounds; the documents were deemed duly filed and the Plaintiff was afforded safeguards against prejudice.
The death of the Defendant and of the expert witness was not disputed, and witness statements had been filed without leave. Relying on Order 50 Rule 6 and the Pattni authority on dispensing justice, the court found sufficient grounds existed. Prejudice to the Plaintiff was addressed: she could call additional witnesses, cross-examine the Defendant's witnesses, and address the weight of their testimony. The court also found the lists could be deemed duly filed.
Legal principles established
#- The court's discretionary power under Order 50 Rule 6 to enlarge time even after the period for doing an act has expired must be exercised judiciously, guided by the imperative of dispensing justice.
Court orders
#- 1.The Defendant's amended list of documents and list of witnesses to be deemed to be duly filed
- 2.The Plaintiff is granted leave to file any additional documents in response within 21 days from the date of the ruling
- 3.Costs to be in the cause
- Jurisdiction invoked
- Order 50 Rule 6 of the Civil Procedure Rules (power to enlarge time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shah v Shah (Environment and Land Case Civil Suit 114 of 2013) [2024] KEELC 3940 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3940/eng@2024-04-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.