Sangahani & 2 others (For and on behalf of Parklands Residents Association) v Nairobi City County Government & 113 others (Environment and Planning Petition E012 of 2025) [2026] KEELC 2618 (KLR)
The bottom line
#A Kenyan court allowed cross-examination of key witnesses in a contempt dispute but refused to summon the lawyer involved.
What this practically means
#Executive summary
#Key legal issues
#Competence of the motion for invoking Order 16 Rule 1 instead of Order 19 Rule 2
The motion was not incompetent; the wrong provision cited was not fatal given the court's jurisdiction and the constitutional command against procedural technicalities
The court accepted that Order 16 Rule 1 governs summoning witnesses for trial and that the proper framework for cross-examining deponents is Order 19 Rule 2. However, citing the Supreme Court in Steyn v Gnecchi-Ruscone and Article 159(2)(d) of the Constitution, it held that mis-citation of a provision is not fatal where jurisdiction exists and the substance is clear. The residual invokees (Sections 1A, 1B, 3A CPA and Rule 3 Mutunga Rules) also confer broad procedural authority.
Whether cross-examination of the deponents on the review motion should be ordered
Yes, as to Akivaga, Mosiria and Githuku; the denial of authority, instructions and service go to the core of the review motion and their evidence would assist a fair determination without reopening the contempt finding
The court found the application was confined to issues arising from the 4th Contemnor's review motion, not an attempt to reopen the contempt finding. The 4th Contemnor's denials of authorisation of the affidavit, of instructions to the advocate, and of service bear directly on representation, participation and service. The implicated persons are best placed to clarify these matters, so cross-examination was ordered.
Whether Bake Hassan Jamala could be summoned notwithstanding privilege and Rule 8 of the Advocates (Practice) Rules
Privilege and Rule 8 would not bar attendance on the retainer question, but his summons was nonetheless refused because he swore no affidavit and the issues could be determined from the deponents
The court held Section 134 of the Evidence Act is not an absolute bar since the inquiry concerned whether instructions existed at all, not privileged communications. Rule 8 likewise does not immunise an advocate from attendance on the retainer issue. Nevertheless, as he placed no evidence before the court, the issues could be adequately determined from the pleadings and the evidence of the actual deponents, so his summons was declined.
Legal principles established
#- Failure to cite the correct provision of law is not fatal where the court is seized of jurisdiction and the substance of the application is clear
- The power under Order 19 Rule 2 to order cross-examination of a deponent is discretionary and must be exercised judiciously, on special circumstances such as allegations of fraud, mala fides or conflicting affidavits
- Advocate-client privilege under Section 134 of the Evidence Act does not bar an advocate's attendance to answer the anterior question of whether a retainer existed at all
Court orders
#- 1.Witness summons to issue compelling the attendance of Patrick Analo Akivaga (6th Respondent/3rd Contemnor), Geofirey Mosiria (4th Contemnor) and Collins Githuku (Advocate of the High Court of Kenya) to attend court for cross-examination on matters arising from the motion dated 29th October 2025
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 16 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, 2010/2020; Rule 3 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sangahani & 2 others (For and on behalf of Parklands Residents Association) v Nairobi City County Government & 113 others (Environment and Planning Petition E012 of 2025) [2026] KEELC 2618 (KLR)", Case Analysis (2026). Motion dated 9th February 2026 in the pending Petition (not stated on the face of the extract). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2618/eng@2026-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.