Kioko v Charo (Environment & Land Case 27 of 2014) [2024] KEELC 4139 (KLR)

Environment and Land Court

14 May 2024

MNMwangi Njoroge

398 words in judgment

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The bottom line

What this practically means

Executive summary

This is a ruling of the Environment and Land Court at Malindi (Mwangi Njoroge, J) on a notice of motion dated February 6, 2024 in which the Defendant/Applicant sought to testify through his duly appointed attorney, Samson Kmbitha Mwambire, relying on a power of attorney. The application was grounded on the applicant's alleged illiteracy, which he said would prevent him from engaging with documents referred to by both parties. The application was unopposed. At a mention on March 5, 2024 the court directed both parties to file written submissions; neither complied, and the court dismissed the application for that failure. In the alternative, the court considered the merits and held that illiteracy is not a sufficient ground for the orders sought: the applicant knows his case best, is alive and well, and is under no other disability. He had already partially given his evidence-in-chief, and the court declined to permit a fragmented record in which evidence-in-chief is given by two different persons. Noting that the applicant was competently represented and that interpretation could be procured at the hearing, the court ordered that the applicant testify in person. The application dated February 6, 2024 was dismissed with costs. The judgment was dated, signed and delivered electronically at Malindi on May 14, 2024.

Key legal issues

Whether a litigant may testify through a power of attorney on the ground of illiteracy

Holding

No; illiteracy alone does not justify testimony through an attorney where the litigant is alive, well and otherwise under no disability

Reasoning

The court held that it is the applicant who knows his case best and his own evidence is needed. He had already partially testified, and allowing another person to continue would create a fragmented, inconsistent record. With a competent advocate and interpretation available at the hearing, there was no basis to displace the requirement of personal testimony.

p. 1

Consequences of failure to comply with directions to file submissions

Holding

The application stands dismissed for non-compliance with the court's directions

Reasoning

The court had directed both parties to file written submissions within a specified time. Neither complied. The court dismissed the application on this basis, and proceeded independently to consider the merits, finding it unmerited even assuming compliance.

p. 1

Legal principles established

Illiteracy is not of itself a sufficient ground to permit a party to testify through an attorney where the party is otherwise under no disability
A party who has partially given evidence-in-chief should not have that evidence supplemented by a different person; evidence-in-chief should not be split between two witnesses

Court orders

1.The application dated February 6, 2024 is dismissed for failure to comply with the court's directions on filing submissions
2.The applicant should testify in person
3.The application is dismissed with costs

Jurisdiction invoked: Not expressly stated; original civil suit jurisdiction of the Environment and Land Court

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kioko v Charo (Environment & Land Case 27 of 2014) [2024] KEELC 4139 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4139/eng@2024-05-14

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