Shah v Shah (Environment and Land Case 114 of 2013) [2025] KEELC 6351 (KLR)

2. Counsel for the Plaintiff Mr Muriithi submitted that the Defendant witness was constantly referring to issues which had not been covered in the witness statements. On the other hand Counsel Mr Rebelo argued that the issues that the witness was clarifying only came about during the cross examination of the earlier witnesses. As such the issues were properly before the court. 3. It is appropriate to restate the guiding constitutional and legal provisions as the court gives guidance on this issue. 159. (1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution. (2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles— a) justice shall be done to all, irrespective of status; (b) justice shall not be delayed; (c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3); (d) justice shall be administered without undue regard to procedural technicalities; and 74 Constitution of Kenya [Rev. 2022] RULING ELC NO 114 OF 2013 2 of 7

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(e) the purpose and principles of this Constitution shall be protected and promoted. 4. The people of Kenya gave the Courts authority which is to be exercised having regard to certain key principles, that firstly justice must be done to all. In the context of a court, justice must be done to both parties. The people of Kenya were also emphatic that justice must not be delayed. The fact that a 2013 matter is being heard in the year 2025 is an indictment on not only the courts but also the parties who also in different ways contribute to delay in our courts. Another principle that was codified in the Constitution is that there should not be undue regard to technicalities and that at all times the purpose and principles of the Constitution shall be protected and promoted. 5. Article 50 of the Constitution goes further to pronounce the Rights of parties to a Fair hearing thus; (1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. 6. Parties before a court are entitled to fairness, independence and impartiality. These principles can only be achieved RULING ELC NO 114 OF 2013 3 of 7

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within the confines of the law. Adherence to the law ensures uniformity, predictability and ultimately fairness. For this reason, I have sought guidance from the Evidence Act regarding the issue at hand. 7. Section 62 of the Evidence Act provides that “All facts, except the contents of documents, may be proved by oral evidence.” 8. Section 146 of the same Act clearly outlines the order of adducing evidence thus; “(1) Witnesses shall first be examined-in-chief, then, if the adverse party so desires, cross-examined, then, if the party calling them so desires, re-examined. (2) Subject to the following provisions of this Act, the examination-in-chief and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified in his examination-in-chief. (3) The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the court, introduced in reexamination, the adverse party may further cross-examine upon that matter. (4) The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further crossRULING ELC NO 114 OF 2013 4 of 7

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examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.” 9. In a bid to comply with the Constitutional imperative to expedite matters, the Hon Chief Justice has formulated the Environment and Land Court practice Directions which provide at paragraph 12 (a) (1) that a party shall adapt his/ her statement as his evidence in chief. Subsection 12 (a) (11) provides that a party may for good reason apply to be allowed to highlight evidence and produce documents. The practice directions thus cannot be said to outlaw oral evidence. The court can allow oral evidence. 10.From the foregoing Constitutional and statutory provisions, I distil the following; fi Parties should file comprehensive witness statements which should be adequate to address all issues a witness wishes to address in evidence in chief fi Section 62 of the Evidence Act allows oral evidence. However, for a witness to give oral evidence after filing of written statements they need to apply to the court giving reasons for the necessity to give such additional evidence. In my view, in the interest of expedition, this application can be made orally before commencement of the hearing. fi The court has wide discretion under Section 146 of the Evidence Act to consider such an application on a case by RULING ELC NO 114 OF 2013 5 of 7

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case basis. This exercise of this discretion must be guided by the principles enshrined in Article 159 of the Constitution and Section 1A and 1B of the Civil Procedure Act. fi In the instant case the reasons given for the necessity of the oral evidence is that the issues arose during cross examination hence could not be addressed in the witness statements. I find that this is a reasonable explanation and as such allow the witness to give additional evidence only in so far as it relates to the additional issues raised in cross examination. 11.As I conclude I urge the parties to be guided with the findings in this Ruling so as to reduce the amount of time spent addressing objections during the hearing of this 15 year old case. Judgement Signed dated and delivered via Microsoft teams this 21st day of May 2025 JUDY OMANGE JUDGE In the presence of Court Assistant Catherine Mr. Muriithi for Plaintiff RULING ELC NO 114 OF 2013 6 of 7

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Mr. Rebello for the Defendant Mr Rebello – I ask for leave to file additional witness statements to reduce the time spent in court Mr Muriithi – I also seek leave in case I need to respond COURT- Parties are granted 14 days each. Mention on 9/6/2025 and Hearing on 10/7/2025 RULING ELC NO 114 OF 2013 7 of 7

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