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 adavit 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 adavit 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 adavit 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 adavit sworn by the 1st plainti is there on record. 12. I also note that after the 1st plainti had testied, 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 adavit. 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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