Case ID:170223

John Kibor Seroney & 3 others v Stanley Kiptorus Chemosy & 2 others [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case 79 of 2014

Parties:

John Kibor Seroney, Joseph Kibor, Catherine Chelagat Kibor & Samwel Kibet Too & 3 others v Stanley Kiptorus Chemosy, Jackson Kipngetich Komen & Joseph Sawenja Waningilo

Date Delivered:

17 Feb 2021

Case Class:

Civil

Court:

Environment and Land Court at Kitale

Case Action:

Ruling

Judge(s):

Francis Mwangi Njoroge

Citation:

John Kibor Seroney & 3 others v Stanley Kiptorus Chemosy & 2 others [2021] eKLR

Court Division:

Environment and Land

County:

Trans Nzoia

Case Outcome:

Application allowed.

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 79 OF 2014

JOHN KIBOR SERONEY....................................................1

ST

PLAINTIFF

JOSEPH KIBOR..................................................................2

ND

PLAINTIFF

CATHERINE CHELAGAT KIBOR..................................3

RD

PLAINTIFF

SAMWEL KIBET TOO......................................................4

TH

PLAINTIFF

VERSUS

STANLEY KIPTORUS CHEMOSY................................1

ST

DEFENDANT

JACKSON KIPNGETICH KOMEN..............................2

ND

DEFENDANT

JOSEPH SAWENJA WANINGILO................................3

RD

DEFENDANT

RULING

1. The application dated

10/11/2020

and filed in court on

13/11/2020

has been brought by the plaintiffs under

Order 10 Rule 11

and

Order 18 Rule 10

of the

Civil Procedure Rules

and

Section 3A

of the

Civil Procedure Act,

Cap 21.

The plaintiffs seek the following orders:-

(1)

…

spent

(2)

…spent

(3) That this honourable court be pleased to set aside the order closing the defence case made on the 8/10/2020 and re-opens the same.

(4) That the honourable court be pleased to recall the 3

rd

defendant who had testified on 8/10/2020 in the absence of the plaintiffs’ advocate for cross-examination.

(5) That the costs of this application be provided for.

2. The application is supported by the affidavit of the 1

st

plaintiff sworn on

10/11/2020

with authority from the other plaintiffs. The grounds upon which the application is made are that the plaintiffs’ advocate was unable to attend court owing to a medical condition which was not deliberate and an excusable mistake; that the plaintiffs will be prejudiced by the closure of the case without cross-examination of the 3

rd

defendant and that the matter involves land which is an emotive subject.

The Response

3. I have perused the file record and I have not found any reply to the application.

Submissions

4. The 3

rd

defendant filed his written submissions on

2/12/2021.

The plaintiffs filed their submissions on

29/11/2020

.

Determination

5. The main issue that arises in the instant application is whether the 3

rd

defendant who testified on

8/10/2020

should be recalled for cross examination.

6. The applicants rely on

Order 18 Rule 10

of the

Civil Procedure Rules

and

section 146

of the

Evidence Act Cap 80.

They also cite the case of

Esther Wangui Ndegwa V Hellen Wambui Miria and 4 Others [2019] eKLR

and

Phillip Chemwolo & Another Vs Augustine Kubende [1986] eKLR.

7.

Order 18 Rule 10

of the

Civil Procedure Rules

however when properly construed grants only the court the mandate to recall at any stage of the proceedings any witness who has been examined and examine him as it deems fit.

8. The more appropriate provision to be relied on in the present instance is

Section 146

of the

Evidence Act Cap 80

but it does not also address the situation the plaintiffs find themselves in fully. That provision allows the court to permit a witness to be recalled for either further examination-in-chief or for further cross-examination. It appears to presume that examination-in-chief or cross-examination had occurred by the time the recall order is being made.

9. The reliance on the respective decisions in

Phillip Chemwolo

and

Esther Wangui Ndegwa (supra)

is also amiss as the application is apparently primarily based on the fact that the advocate then representing the plaintiff was unwell and in the absence of any evidence as to what condition he was in he may not be blamed for any blunder yet.

10. However, having perused the application and the submissions filed by the parties I find that the present instance is one where a litigant is seeking to be relieved of a burden borne out of circumstances not of his own making; the plaintiff’s case had been closed and the defence case proceeded in his absence and in the absence of his counsel and therefore no cross-examination was done.

11. I find that the application has merit and I grant it in terms of

Prayers Nos. (3)

and

(4)

thereof. The costs of the application shall be in the cause.

12.. Consequently the 3

rd

defendant shall present himself on the

9/3/2021

for cross-examination and subsequent re-examination.

13. It is so ordered.

Dated, signed

and

delivered

at

Kitale via electronic mail

on this

17

th

day of

February, 2021.

MWANGI NJOROGE

JUDGE, ELC, KITALE.