Ayora v Odhiambo & another (Land Case (Originating Summons) E012 of 2023) [2026] KEELC 3371 (KLR)
The bottom line
#A Kenyan land court ruled that striking out a witness's affidavits in a preliminary application does not stop that witness from testifying at the main trial.
What this practically means
#Executive summary
#Key legal issues
#Whether affidavits struck out in an interlocutory application permanently disqualify the deponent as a trial witness
No — the objection was overruled and the witness may testify on the basis of his witness statement
The court found that the expunged affidavits were in response to an interlocutory application, not the substantive suit. The suit had been directed to proceed by viva voce evidence, and the defence filed a separate witness statement by the same witness which was never expunged. No order permanently barring the witness existed, and barring him would breach the defendant's right to fair hearing.
Whether affidavits in originating summons proceedings stand as pleadings and witness statements
Yes, generally under Order 37 rule 19 of the Civil Procedure Rules, affidavits in originating summons proceedings can be relied on as pleadings and witness statements, but this principle did not apply here because the expunged affidavit responded to an interlocutory application
Order 37 rule 19 permits a court to order affidavits filed in originating summons proceedings to stand as pleadings. However, the court distinguished this case because the struck-out affidavit was tied to an interlocutory application rather than the substantive suit, so the ruling did not extend to barring the witness from the main hearing.
Whether a party can compel an opponent to call or refuse to call a particular witness
No — each party bears sole responsibility for deciding which witnesses to call, subject to calling credible and material witnesses
Relying on the Supreme Court's decision in Stanley Mombo Amuti v Kenya Anti-Corruption Commission, the court noted that a party alone bears responsibility for choosing its witnesses, and a court cannot ordinarily direct a party to call any witness save in exceptional circumstances. The plaintiff could not therefore use the prior ruling to lock out a defence witness of the defendant's own choosing.
Legal principles established
#- A ruling striking out affidavits sworn by a witness in an interlocutory application does not amount to a permanent disqualification of that witness from testifying in the main suit where the witness was disclosed and a separate witness statement was filed
- A party cannot be compelled by another party or ordinarily by the court to call a particular witness; each party decides which witnesses to call
Court orders
#- 1.The Plaintiff's counsel's objection is overruled and dismissed
- 2.The defence may rely on the separate witness statement of Mr. Hussein which was not expunged from the record
- Jurisdiction invoked
- Original civil suit jurisdiction (originating summons proceedings under the Civil Procedure Rules); no specific constitutional or statutory jurisdictional provision invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ayora v Odhiambo & another (Land Case (Originating Summons) E012 of 2023) [2026] KEELC 3371 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3371/eng@2026-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.