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ELCPartially AllowedNot stated in excerpt (application dated 7/11/2023)· [2024] KEELC 6471 (KLR)

Githanji & 17 others (Suing on their own behalf and on behalf 73 others) v Gichugu Laikipia Property Investment Co Ltd & 3 others (Environment and Land Case Civil Suit E008 of 2023) [2024] KEELC 6471 (KLR)

Environment and Land Court
18 September 2024
2,946 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nanyuki (K. Bor, Judge) on an application dated 7/11/2023 brought by the Plaintiffs in a part-heard land suit. The Plaintiffs sought witness summons against the directors of the 3rd Defendant (Sosian Ranch Limited) and its affiliate Sosian Limited, and against the 4th Defendant (Land Registrar, Laikipia), together with leave to file a supplementary list of documents and additional witness statements after the hearing had commenced. The 1st and 2nd Defendants opposed, arguing that a party cannot be compelled to give evidence in an adversarial system, that interlocutory judgment under Order 10 Rule 7 was the proper route against non-appearing defendants, and that the application amounted to filling gaps in the Plaintiffs' case after pleadings closed, causing prejudice. The court framed two issues: whether the Plaintiffs could call additional witnesses and file a supplementary list of documents, and whether witness summons should issue against the 3rd and 4th Defendants. The court held that while Order 16 empowers the court to summon witnesses, compelling a sued company or its directors to testify would infringe its constitutional right to a fair trial; the correct remedy against a non-appearing defendant was interlocutory judgment. Summons were accordingly refused for the directors but granted for the Land Registrar as custodian of crucial land records. Leave was granted to file the supplementary documents and the witness statement of Francis Mathenge Wanderi within three days. The 1st and 2nd Defendants were awarded the costs of the application.

Key legal issues

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01

Whether a party may summon a sued but non-appearing defendant (or its directors) to testify

Holding

No. A sued company cannot be compelled to give evidence through witness summons; the proper route was interlocutory judgment under Order 10 Rule 7.

Reasoning

The court held that although Order 16 permits summoning witnesses, using it against a party to the suit would amount to compelling that party to testify, infringing its constitutional right to a fair trial. Where a defendant fails to file a defence, the Plaintiff should instead seek interlocutory judgment and set the suit down for formal proof.

p. 5
02

Whether additional witness statements and a supplementary list of documents may be introduced after trial has commenced

Holding

Yes, in the court's discretion, where the plaintiff's case is not yet closed, no prejudice is shown, and the evidence is crucial to a just determination.

Reasoning

The court balanced the plaintiffs' right to a fair trial under Article 50(1) and the need to decide with all relevant evidence against the defendants' claims of prejudice and ambush. Since the plaintiffs had not closed their case and the defendants would still be able to cross-examine, no real prejudice was demonstrated, and leave was granted.

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Whether witness summons should issue against the 4th Defendant (Land Registrar)

Holding

Yes. The Land Registrar, as custodian of land records, holds crucial evidence on how the transfers were effected.

Reasoning

The court accepted that the Land Registrar, being the custodian of land records including those of the suit property, holds valuable evidence on the transfers and documents submitted, which would assist the court in determining the issues in controversy. Summons against the 4th Defendant were accordingly granted.

p. 2

Legal principles established

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  • A corporate party that is sued cannot be compelled through witness summons to give evidence for another party, as that would offend its right to a fair trial.
  • Applications for witness summons should ordinarily be made before the pretrial conference, and intended witnesses' statements should be filed with the suit papers under Order 3 Rule 2.

Court orders

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  1. 1.Witness summons to issue against the 4th Defendant (Land Registrar, Laikipia)
  2. 2.Leave granted to the Plaintiffs to file and serve a supplementary list of documents and witness statement of Francis Mathenge Wanderi within three days
  3. 3.Court declines to issue witness summons in respect of Lucy Wangechi Kairu and James Kairu Wanderi, directors of the 3rd Defendant and its affiliate Sosian Limited
  4. 4.1st and 2nd Defendants awarded the costs of the application dated 7/11/2023

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 123
  • Civil Procedure ActSections 22(b), 23, 24
  • Civil Procedure RulesOrder 3 Rule 2
  • Civil Procedure RulesOrder 10 Rules 6, 7, 9, 10
  • Civil Procedure RulesOrder 11
  • Civil Procedure RulesOrder 16 Rules 1, 10, 12
  • Evidence ActSection 32

Cases cited (2)

  • Mary Wamuyu Thuku & Serah Wanjiku & 2 Others
    [2022] eKLR
  • Peter Agweli Onalo v Eliakim Ludeki & 2 others
    (2006) eKLR
Jurisdiction invoked
Sections 22(b) and 23 of the Civil Procedure Act and Order 16 of the Civil Procedure Rules

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, "Githanji & 17 others (Suing on their own behalf and on behalf 73 others) v Gichugu Laikipia Property Investment Co Ltd & 3 others (Environment and Land Case Civil Suit E008 of 2023) [2024] KEELC 6471 (KLR)", Case Analysis (2024). Not stated in excerpt (application dated 7/11/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6471/eng@2024-09-18

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