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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a witness whose affidavits were struck out on 30th January 2024 by Justice Wabwoto may be barred from testifying in the main suit
- 2.Whether the ruling of 30th January 2024 amounted to a permanent disqualification of Hussein Hassan as a witness
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil suit jurisdiction (originating summons proceedings under the Civil Procedure Rules); no specific constitutional or statutory jurisdictional provision invoked
Relief refused
#Application to bar Hussein Hassan (Hussein Gilo Sura) from testifying in the matter
Locking out a defence witness would offend the right to fair hearing; the striking-out related only to interlocutory affidavits and no order permanently barring the witness was ever made
Costs
No order as to costs appears in the judgment
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.
Nothing bars the defendant from relying on the said witness statement which was not expunged from the record, and no such orders to permanently bar the said witness were issued by this Court.
It would be against the interest of justice and the defendant’s right to fair hearing to lock out a defence witness from being heard. For this reason, the plaintifi’s counsel objection is overruled and dismissed. It is so ordered.
A court cannot ordinarily direct a party to call any witness. Save in exceptional circumstance, a trial court cannot call any witness.
Issues in the judgment
#Chronological inconsistency: the ruling said to have been delivered on 30th January 2024 is later described as orders of 17th April 2023 and 13th June 2024; the matter is also stated to have come up on 21st April 2026, yet the objection concerns a ruling of 30th January 2024 said not to have been appealed
The citation [2019] KECA 783 (KLR) is attributed to the Supreme Court for Stanley Mombo Amuti v Kenya Anti-Corruption Commission; the 'KECA' citation format ordinarily denotes the Court of Appeal
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.