Nirestein & another v Taga & 3 others (Environment & Land Case E003 of 2024) [2025] KEELC 4284 (KLR)
The bottom line
#Kenyan courts will not force an overseas witness to travel home; virtual hearings are valid, public, and binding once agreed at case management.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Defendants' objection to virtual hearing of the suit, and their demand for physical attendance of the 1st Plaintiff, can stand
- 2.Whether virtual hearing would impede the Defendants' right to a fair hearing under Article 50 of the Constitution
- 3.Whether the court should refuse virtual hearing on the allegation that the 1st Plaintiff is a fugitive from the law
Key legal issues
#Whether virtual hearing breaches the right to fair hearing under Article 50(1) of the Constitution
Virtual hearing does not breach the right to a fair hearing; the virtual court is open and public, and defendants retain the right to cross-examine the witness
The court reasoned that a virtual court is accessible to the public through a link published on the cause list, satisfying openness. Parties had exchanged trial bundles, so documents could be referred to during virtual cross-examination. The matter had proceeded virtually throughout with lengthy proceedings and no claim of prejudice, so no breach of fair hearing rights arises.
Whether the court should refuse virtual hearing because the 1st Plaintiff is allegedly a fugitive from criminal charges
No; the suit is civil, no warrant of arrest has issued, and the allegation does not disqualify a party from virtual hearing absent a contempt finding
The court held it is only concerned with taking evidence in a civil dispute and is not involved in any intended criminal case against the 1st Plaintiff. Criminal matters are the work of the police and relevant institutions, so the fugitive allegation cannot be used to deny virtual participation.
Whether the Defendants' belated objection to virtual hearing, having agreed to it at case management, could stand
The objection could not stand; the mode of hearing was settled at case management under Order 11 rule 3(d) of the Civil Procedure Rules
The court found that parties chose virtual hearing during case management, confirmed readiness and a hearing date, and never raised discomfort. Raising the objection on the hearing date was aimed at scuttling the hearing and frustrating the witness, and no prejudice was shown from prior virtual proceedings.
Legal principles established
#- Virtual court proceedings constitute an open and public hearing for purposes of Article 50 of the Constitution
- A court cannot deny a party virtual hearing on the mere allegation that they are a fugitive from the law in a civil suit
- Parties cannot turn around on the hearing date to object to a mode of hearing they agreed to at case management
Court orders
#- 1.The objection by Mr Kanchory on virtual hearing is overruled
- 2.The matter to proceed for hearing virtually, especially on the evidence of the 1st Plaintiff who is based in USA
- 3.Cross-examination of the 1st Plaintiff will also be done virtually
- 4.In the event the Defendants wish to have their evidence taken physically in open court, a hybrid mode of hearing will be adopted
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction over land disputes under the Civil Procedure Act and Article 159 of the Constitution
Relief refused
#Defendants' request that the 1st Plaintiff appear physically in open court to give her evidence and be cross-examined
No evidence of prejudice to Defendants; objection was belated, not raised at case management, and would frustrate the hearing and deny the 1st Plaintiff access to justice
Costs
No costs order made in this ruling
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, the objection by Mr Kanchory on virtual hearing is overruled. The matter to proceed for hearing virtually especially on the evidence of 1st Plaintifi who is based in USA, as the court cannot force her to travel to Kenya for physical hearing of this case
In the event the Defendants would wish to have their evidence taken physically in open court, then that right is still open to them, and a hybrid mode of hearing will be adopted.
Therefore, virtual court is an open and public court, with no restriction to access.
The court cannot deny a party virtual hearing on allegation that he/she is a fugitive from the law, unless the court has found such party to be in contempt of court
Issues in the judgment
#The judgment does not state the actual case number, parties' names, or neutral citation; it refers only to 'Plaintiffs' and 'Defendants'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nirestein & another v Taga & 3 others (Environment & Land Case E003 of 2024) [2025] KEELC 4284 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4284/eng@2025-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.