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Original judgment

Muli & another v Nakumama & 3 others

Muli & another v Nakumama & 3 others (Environment & Land Case 184 of 2017) [2023] KEELC 16973 (KLR) (27 April 2023) (Ruling) Neutral citation: [2023] KEELC 16973 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KAJIADO ENVIRONMENT & LAND CASE 184 OF 2017 LC KOMINGOI, J APRIL 27, 2023 BETWEEN SILVANUS MUSYOKI MULI .............................................................. 1ST PLAINTIFF NAOMI KANYUA MUSYOKI ........................................................... 2ND PLAINTIFF AND KAPOSHI OLE NJOROGE NAKUMAMA ................................... 1ST DEFENDANT JONATHAN KAPOSHI .................................................................. 2ND DEFENDANT NTEENE OLE KAPOSHI ................................................................ 3RD DEFENDANT KENNETH OBIMBO ODHIAMBO .............................................. 4TH DEFENDANT RULING 1. This is an objection raised by Mr Achilla seeking to prevent Mr Kali from cross-examining PW 1 (the 1st plainti) after he had concluded his cross-examination. 2. The grounds are; That at the end of the testimony of PW1, Mr Musili who was acting for the 2nd plainti, then stated that they wished to associate themselves with the evidence of the 1st plainti. Secondly, that 1st – 3rd defendants will be prejudiced as they will not have a chance to further crossexamine the witness (PW1). 3. He also submitted that the 2nd plainti did not le a separate adavit in order to give her a right to cross-examine the 1st plainti as at the set of this case she stated that she was relying on the adavit sworn by the 1st plainti. 4. Mr Wandaka submitted that the 2nd plainti ought to be allowed to cross examine the 1st plainti. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16973/eng@2023-04-27 1

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5. Mr Kali submitted that Mr Musili’s sentiments did not waive the 2nd plainti’s right to cross-examine the 1st plainti. That it is the 2nd plainti’s constitutional right to cross-examine the 1st plainti. He prays that the objection be overruled. 6. I have considered the rival submissions. The question before this court is whether the objection is merited. 7. I have gone through the court record. Upon being served with the originating summons, the 2nd plainti (Naomi Kanyua Musyoki) signed an authority to act dated July 17, 2012 giving the 1st plainti authority to represent her and give evidence on her behalf. 8. Attached to the originating summons is the adavit sworn by the 1st plainti and the documents. 9. There is a Notice of change of Advocate dated February 6, 2018 led by M/s EK Mutua & Co Advocates stating that the said rm was now acting for the 2nd plainti. 10. I have also gone through the typed proceedings. On the March 7, 2017 the 2nd plainti was directed to regularize her position by ling the relevant documents and witness statements within 7 days. 11. This was not done as there are no documents led by the 2nd plainti to which she can base her crossexamination. As things stand, only the adavit sworn by the 1st plainti is there on record. 12. I also note that after the 1st plainti had testied, Mr Musili for the 2nd plainti stated that they associated themselves with the evidence of the 1st plainti. 13. There is nothing to show that Mr Musili did not have instructions from the 2nd plainti then. 14. I nd that there is no known procedure in law which would enable the 2nd plainti to cross-examine the 1st plainti under these circumstances. She has not led a separate adavit. The 1st to 3rd defendants counsel has concluded his cross-examination. 15. I nd merit in the objection and the same is upheld. DATED SIGNED AND DELIVERED VIRTUALLY ON 27TH APRIL, 2023 AT KAJIADO. L. KOMINGOI JUDGE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16973/eng@2023-04-27 2

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Muli & another v Nakumama & 3 others — Original judgment | Caselaw