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ELCDismissed· [2024] KEELC 4741 (KLR)

Kalaiya v Cheruiyot & 5 others (Environment & Land Case E394 of 2021) [2024] KEELC 4741 (KLR)

Environment and Land Court
13 June 2024
OMOGUTTU MBOYA
3,965 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi land court confirmed that removing paragraphs from a witness statement isn't 'new evidence', so the plaintiff's objection to the substituted statement failed.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Nairobi (Oguttu Mboya, Judge) delivered on 13th June 2024 in an ongoing land suit. On 22nd May 2024 the hearing could not proceed and, on the unopposed application of the 2nd, 3rd, 5th and 6th Defendants, the court granted leave to file a substituted witness statement in place of one recorded by a previous Land Registrar who had become unreachable, on condition that no new or additional evidence be introduced. The Defendants filed the substituted statement omitting paragraphs 3, 4, 5, 6, 8 and 16 of the original, and on 23rd May 2024 the Plaintiff objected, seeking expungement of the substituted statement or, alternatively, an order compelling the Defendants to rely on the previous statement, arguing the omissions removed critical evidence on the process preceding issuance of the disputed certificate of title and prejudiced his fair-hearing rights. The Defendants, through chief litigation counsel Mr. Oscar Eredi, maintained that no new evidence was introduced and that the omitted paragraphs dealt with matters only the previous Land Registrar could speak to, their retention amounting to hearsay under Section 33 of the Evidence Act. The court framed three issues and resolved all against the Plaintiff: introduction of new evidence is a positive act of addition, not omission; expungement therefore did not arise; and under the adversarial system the court cannot direct a party what evidence to tender, applying IEBC v Mutinda Mule, Dakianga Distributors, Stanley Mombo Amuti and Trusted Society v Mumo Matemo. The objection was dismissed, with costs to abide the outcome of the suit.

Key legal issues

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01

Whether the substituted witness statement breached the 22nd May 2024 order against new evidence

Holding

It did not; introducing new evidence requires adding material, not omitting paragraphs

Reasoning

The court's 22nd May 2024 order barred the introduction of new and/or additional evidence. The Defendants' substitution only removed paragraphs peculiarly within the knowledge of the previous Land Registrar. Omission is a negative act; introduction of evidence is a positive act. The substituted statement therefore complied with the order.

p. 5
02

Whether the substituted witness statement should be expunged

Holding

No; the expungement prayer was misconceived since no breach of the court order was established

Reasoning

Having found the substitution accorded with the court's directions, which prohibited only the introduction of new evidence and did not address removal of paragraphs, the foundation for expungement fell away.

p. 5
03

Whether the court can compel Defendants to rely on the previous witness statement

Holding

No; under the adversarial system parties own their cases and choose their evidence, and the previous statement is superseded

Reasoning

Relying on IEBC v Stephen Mutinda Mule, Dakianga Distributors, Stanley Mombo Amuti and Trusted Society v Mumo Matemo, the court held that parties formulate and present their own cases; the court is an impartial arbiter and cannot direct what evidence a party tenders. The previous witness statement was rendered redundant by substitution.

p. 6

Legal principles established

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  • Introduction of new or additional evidence is a positive act (adding paragraphs), not a negative act of omitting paragraphs
  • Under the adversarial system each party chooses its own pleadings and evidence, and the court cannot direct a party what witness statement to adopt
  • A court cannot ordinarily direct a party to call any witness

Court orders

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  1. 1.The objection raised by learned counsel for the Plaintiff be and is hereby dismissed
  2. 2.The costs occasioned by the objection shall abide the outcome of the suit

Authorities

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Legislation

  • Evidence Act, Cap 80 Laws of KenyaSection 33
  • Civil Procedure RulesOrder 2, Rule 6

Cases cited (6)

  • Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others
    [2014] eKLR
  • Dakianga Distributors (K) Ltd v Kenya Seed Company Limited
    [2015] eKLR
  • Stanley Mombo Amuti v Kenya Anti-Corruption Commission
    [2019] eKLR
  • Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others
    [2014] eKLR
  • Dabbah -v- Attorney-General for Palestine
    (1944) AC 156
  • Whitehorn -v-R
    (1983) 152 CLR 657
Jurisdiction invoked
First-instance civil suit; court ruling on an interlocutory objection (no specific constitutional/statutory invocation stated)

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, "Kalaiya v Cheruiyot & 5 others (Environment & Land Case E394 of 2021) [2024] KEELC 4741 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4741/eng@2024-06-13

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