Linda Chelimo Saina & Another v Stella Chepchumba Saina & Another

2. The application is based on the grounds on the face of it, chief of which is that whereas the 1 st defendant testified and was cross-examined by the then counsel on record for the plaintiffs, there have emerged several material issues central to the just determination of the dispute that were not canvassed during cross-examination. 3. The applicants further contend that the issues sought to be raised are necessary and core to the just determination of the matters in controversy. 4. The application is supported by the sworn affidavit of the 1st applicant herein dated 6/5/2026 setting out facts giving rise to the same. 5. The applicants aver that upon their advocate taking over the conduct of this matter and undertaking a comprehensive review of the pleadings, proceedings, and evidence on record, they have established that material and substantive issues central to the just determination of this dispute were not canvassed during cross-examination of the 1st defendant. 6. At paragraph 5 of the said application, the applicants have set out the issues they consider material and which issues they claim were not canvassed by way of cross-examination, which include the existence, RULING: KITALE ELC NO. E036 OF 2022 - D.O.D . - 18/09/2026 2

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contents and legal effect of succession proceedings and rulings touching on the suit property, including the relevant pleadings and rulings of the court. 7. The applicants have equally identified issues to do with the terms, validity, execution and legal effect of the agreement(s) leading to the transfer of the suit property, among others. 8. The application is opposed by the respondents. They each filed separate replying affidavits sworn on 16/7/2026 and 6/7/2026, respectively. 9. In her replying affidavit, the 1st respondent terms the application a gross abuse of the court process, legally untenable, frivolous, and vexatious. The 1 st respondent further avers that on 5/2/2026 when she gave her evidence in chief, the plaintiffs’ advocate conducted an extensive, unrestricted and rigorous cross-examination against her and that the said advocate had unfettered opportunity to test her credibility, confront her with documents and extract any admissions deemed necessary for their case. 10. The 1st respondent further states that the application fails to demonstrate unaddressed issue that any specific, could not new have or been canvassed during the hearing on 5/3/2026. RULING: KITALE ELC NO. E036 OF 2022 - D.O.D . - 18/09/2026 3

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11. Likewise, the 2nd respondent in his replying affidavit avers that the matters which the applicant alleges to be fundamental or material were well within the plaintiffs’ knowledge and possession at the time the 1st defendant application testified, merely and seeks to that the cure present omissions, inadvertence and deficiencies in the plaintiffs’ own conduct of the case which is not a legally recognised ground for recalling a witness. 12. Thereafter, the parties filed their submissions. In their submissions, counsel for the applicants has urged that omitted issues are not peripheral nor cosmetic as they directly concern the following: (i) Succession proceedings and rulings touching on the suit property. (ii) The legality and validity of the impugned transfer process. (iii) The contractual nexus between the parties. (iv) The circumstances surrounding acquisition of the suit property. (v) Material contradictions in the testimony of the 1st defendant. (vi) The legality and validity of the transactions affecting title. 13. Counsel further urges that the Environment and Land Court exercises a specified jurisdiction touching on proprietary rights and legality of title. That such disputes fairly cannot conclusively and RULING: KITALE ELC NO. E036 OF 2022 - D.O.D . - 18/09/2026 be 4

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determined without complete evidentiary interrogation of the impugned transactions. The learned counsel cited a number of judicial authorities, including Republic vs James Kiarie Mutungei [2017] eKLR and Patel vs East African Cargo Handling Services Ltd [1974] EA 75. 14. On their part, counsel for the 1 st respondent has submitted that the application fails to demonstrate any exceptional circumstances or new developments to warrant the recall of the 1st defendant. 15. Counsel further submitted that the application does not meet the threshold for the recalling of a witness as contemplated under the Evidence Act and that the Civil Procedure Rules, and relied on the case of Mahiu & Another vs Gatei & 3 Others for the proposition that the recall of witnesses is permitted to clarify evidence, not to serve as a party’s tool to supplement proof or repair an omission. 16. I have carefully considered the application, the rival affidavits on record as well as the written submissions by counsel, for which I am grateful. I have equally considered the applicable laws. 17. The application is brought under the provisions of Sections 1A, 1B, and 3A of the Civil Procedure Act RULING: KITALE ELC NO. E036 OF 2022 - D.O.D . - 18/09/2026 5

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as well as Sections 146(4) and 150 of the Evidence Act. Section 146(4) of the Evidence Act appears to be the primary statutory provision upon which the application is anchored. 18. Section 146(4) of the Evidence Act is couched in the following terms: “The court may (emphasis mine) in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and reexamination respectively.” 19. The said provision is couched in the permissive term “may”, which signals the court’s discretion to allow or not to allow an application for recalling of witnesses when made. The provision does not, however, provide the rationale or the guiding principles or factors to be considered in exercising the court’s discretion to grant or not to grant an order for the recalling of a witness. 20. However, in my own reckoning, the rationale seems to lie in the need for the court as a trier of fact to establish the truth and veracity of the evidence placed before it. Truth, even though not synonymous with justice, is a means to the latter. This reasoning RULING: KITALE ELC NO. E036 OF 2022 - D.O.D . - 18/09/2026 6

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seems to find support in case law. In the case of the State of South Dakuta vs Damm [1936] 266, MW 6167-71, which is a persuasive authority, Campbell, J. had this to say: “The primary function of the judiciary is the administration of justice, and justice can never be rightly administered unless the truth be first ascertained as nearly as may be…. The citizen holds his citizenship subject to the duty to furnish to the courts, from time to time and within reasonable limits (which are for the courts to determine) such assistance as the courts may demand of him in their efforts to ascertain the truth in controversies before them…..” 21. So the court is clothed inherently and constitutionally with jurisdiction to make an order for the recalling of a witness as contemplated under Section 146(4) of the Evidence Act. But such recalling must not be in vain, or result in prejudice on the part of one party or cause delay in the administration of justice. 22. Going back to the application before me, the applicant has set out the grounds upon which the application is made and further pointed out the specific issues that she wants addressed in crossexamination vide the supporting affidavit on record. I have already highlighted them in this ruling. RULING: KITALE ELC NO. E036 OF 2022 - D.O.D . - 18/09/2026 7

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23. In his submissions, counsel for the applicant urges that the omitted issues are neither peripheral nor cosmetic as they directly concern the question of succession proceedings on the suit property, the legality and validity of the impugned transfer process, the contractual nexus between the parties, among others. 24. Counsel for the respondents, on the other hand, has pointed out to the Court that the application lacks merit and that it is a veiled attempt at re-opening cross-examination after reviewing the trial notes and probably discovering tactical omissions. 25. This Court is fully aware that at the time of the crossexamination of the 1st defendant, the applicants had a different advocate from the one who is currently in conduct of the matter on their behalf. This Court is equally alive to the fact that cross-examination is a subjective art. What one advocate may fancy to be a good cross-examination is different from what another advocate would give a similar rating. It follows, therefore, that different advocates would have a different way of cross-examining and challenging the testimony of a witness. RULING: KITALE ELC NO. E036 OF 2022 - D.O.D . - 18/09/2026 8

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26. This does not, however, mean that the court is unable to establish the truth of the facts placed before it in order to do justice. In arriving at a determination, the court is guided by the parties' pleadings and the totality of the evidence placed before it, not one strand of such evidence. 27. I am not, thus, persuaded that it is necessary to recall the 1st defendant in this case for crossexamination. Quite factually, some of the issues raised by counsel for the applicant, such as material contradictions in the witness's testimony, can be addressed by way of submissions. 28. The upshot of my finding is that the application dated 6/5/2026 lacks merit and the same is dismissed with costs. 29. It is so ordered. Ruling dated, signed, and delivered via Microsoft Teams/Open Court at Kitale on this 18th day of September 2026. In the presence of: Court Assistant: Matui Mr. Nyachiro for the applicants/plaintiffs Ms. Korir for the 1st respondent/defendant RULING: KITALE ELC NO. E036 OF 2022 - D.O.D . - 18/09/2026 9

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Ms. Akinyi for the 2nd respondent/defendant HON. G.M. GITONGA JUDGE, ELC KITALE. RULING: KITALE ELC NO. E036 OF 2022 - D.O.D . - 18/09/2026 10

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