Linda Chelimo Saina & Another v Stella Chepchumba Saina & Another
The bottom line
#A Kenyan court refused to let parties re-question a witness just because their lawyer missed issues the first time around.
What this practically means
#Executive summary
#Key legal issues
#Discretion to recall a witness under Section 146(4) of the Evidence Act
The power is permissive ('may') and discretionary; the statute supplies no guiding principles, but the rationale lies in the court's duty as trier of fact to ascertain the truth, subject to avoiding prejudice, futility and delay.
The court read Section 146(4) as discretionary and found its rationale in the need for the court as trier of fact to establish the truth and veracity of evidence, drawing support from the persuasive South Dakota authority. Recall must not be in vain, must not prejudice a party, and must not delay the administration of justice.
Whether change of advocates and perceived inadequacy of prior cross-examination justify recall
No. Cross-examination is a subjective art and different advocates conduct it differently; the court determines facts on the pleadings and the totality of the evidence, not one strand of it.
The court acknowledged that the applicants had a different advocate at the time of cross-examination and that advocates differ in style and rigour. It held this does not impair the court's ability to do justice, since determination is guided by pleadings and the totality of evidence, and alleged contradictions can be addressed in submissions.
Whether the specific issues raised (succession proceedings, validity of transfer, contractual nexus, contradictions) warrant recall
They do not; at least some, such as material contradictions in testimony, can be addressed by way of submissions, and the application failed to demonstrate necessity.
Although the applicants identified issues said to be central - succession proceedings and rulings, legality of the transfer, contractual nexus and contradictions - the court found the application did not persuade it that recall was necessary, noting that contradictions in a witness's testimony can be dealt with in submissions rather than by re-opening cross-examination.
Legal principles established
#- Section 146(4) of the Evidence Act confers a discretionary power on the court to permit recall of a witness, to be exercised so that recall is not in vain, does not prejudice a party, and does not delay justice
- A party cannot use an application to recall a witness to repair omissions or tactical failures in its own conduct of cross-examination
Court orders
#- 1.The Notice of Motion application dated 6/5/2026 is dismissed with costs
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Sections 146(4) and 150 of the Evidence Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Linda Chelimo Saina & Another v Stella Chepchumba Saina & Another", Case Analysis (2026). ELC NO. E036 OF 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5499/eng@2026-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.