Mbaabu (The duly appointed Attorney of Gerald Kithinji Mwiricha) v Abdulrahim & 4 others (Environment & Land Case 319 of 2021) [2024] KEELC 6080 (KLR)
The bottom line
#A Kenyan land court refused to let a plaintiff retake the stand after amending its case, ruling the request was a disguised attempt to patch weak evidence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff should be recalled to give further evidence as relates to the amended facts and prayers
Key legal issues
#Whether the Plaintiff should be recalled to give further evidence following the (consented) Further and Further Amended Plaint
The prayer to recall the Plaintiff was refused as unmerited.
The court noted that the proposed amendments - principally correcting the title number following consolidation of Kwale/Shimoni/406 with 412 into 758 - had already been allowed by consent and introduced nothing materially new. The supporting affidavit did not disclose what further evidence would be given, leaving the defendant to speculate, and the recall was in substance an attempt to fill gaps in the Plaintiff's case, which the Susan Wavinya Mutavi principles forbid.
The source of the court's jurisdiction to recall a witness
The jurisdiction lies in section 146(4) of the Evidence Act and the inherent powers under section 3A of the Civil Procedure Act, exercised discretionarily.
The application was premised on Orders 1, 8 and 40 of the Civil Procedure Rules, none of which addresses recall. The court identified Order 18 Rule 10 as the relevant procedural provision but read it as applying only to suo motu recall. It grounded the jurisdiction instead in section 146(4) of the Evidence Act, which permits a witness to be recalled for further examination in all cases, coupled with the court's inherent powers.
Legal principles established
#- The court's power to recall a witness is discretionary and is to be exercised judiciously, guided by the principles in Susan Wavinya Mutavi v Isaac Njoroge, including that a recall intended to fill gaps in evidence will not be granted
- Order 18 Rule 10 of the Civil Procedure Rules permitting recall of a witness extends only to recall by the court suo motu, not on application of a party
Court orders
#- 1.The application dated 15th May 2024 dismissed in respect of prayer No. 3 (recalling of the Plaintiff to give further evidence)
- 2.Costs shall abide the outcome of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 1 Rule 10(2)(4), Order 8 Rules 3 and 5, Order 40 Rules 1, 3 & 3 of the Civil Procedure Rules as read with Sections 1A & 1B and 3A of the Civil Procedure Act; Section 146(4) of the Evidence Act
Relief refused
#Prayer 3: leave to recall the Plaintiff to give further evidence on the amended facts and prayers
The amendments were already allowed by consent, introduced nothing of material significance, and the recall appeared designed to fill gaps in the Plaintiff's evidence
Costs
Costs shall abide the outcome of this suit.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I find the prayer to recall the Plaintifi to give further evidence unmerited. The application is hereby dismissed in terms of prayer No. 3. Costs shall abide the outcome of this suit.
The Plaintifi cannot just quietly come in to fill in gaps in the guise of clarifying amendments whose purpose had already been stated and which in this courts view do not warrant a recall because there is nothing new the same have introduced.
The court may in all cases permit a witness to be recalled either for further examination in chief or further cross examination and re-examination respectively.
the court will not grant the plea. Third, the plea for re-opening of a case will be rejected if there is inordinate and unexplained delay on part of the applicant.
Issues in the judgment
#The judgment alternately refers to opposing counsel's client as '2nd Defendant' and '2nd Respondent' in the same discussion
Counsel's name appears inconsistently as 'Mr. Namada' in the body and 'Mr. Namwada' in the coram
Prayer 2 (interim injunction) appears not to have been determined in the ruling despite being part of the application; the disposition addresses only prayer No. 3
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbaabu (The duly appointed Attorney of Gerald Kithinji Mwiricha) v Abdulrahim & 4 others (Environment & Land Case 319 of 2021) [2024] KEELC 6080 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6080/eng@2024-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.