Mwalalya v Dwa Estate Limited (Civil Case 259 of 2017) [2025] KEMC 229 (KLR)
The bottom line
#A Kenyan magistrates' court allowed a plaintiff to swap expert witnesses before trial, but made the plaintiff pay the costs because the delay was their own doing.
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 has given sufficient grounds to warrant the granting of the orders sought
- 2.Whether the plaintiff should be allowed to substitute the witness
- 3.Who should bear costs of the application
Key legal issues
#Whether to grant leave to substitute an expert witness and introduce a supplementary medical report
The application was allowed; the court exercised its discretion in favour of the plaintiff because hearing had not commenced, no evidence had been taken, the new report added no additional evidence, and the defendant could cross-examine the substitute doctor
The court applied the overriding objective under Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(b) and (d) of the Constitution. It found the plaintiff had not demonstrated efforts to secure the original doctor's attendance, and that the plaintiff's account of the procedural history was inaccurate. However, since the matter was still fresh with no evidence taken and the new report did not introduce additional evidence, no prejudice would befall the defendant, who retained the right to cross-examine the substitute doctor. The court also cited its own list of authorities supporting witness substitution.
Costs of the application
Costs of the application were awarded to the defendant and payable by the plaintiff
Although the application succeeded, the court declined to condemn the defendant to costs because the substitution was sought by the plaintiff and the defendant had a legitimate right to oppose it; the unavailability of the plaintiff's witness was not the defendant's fault. This reflects the court's discretionary power on costs balancing the successful application against the plaintiff's own inconvenience caused.
Legal principles established
#- A court may, in exercise of its discretion and in furtherance of the overriding objective, allow substitution of a witness where no evidence has been taken and no prejudice is occasioned to the opposing party
Court orders
#- 1.The application dated 17/3/2025 is hereby allowed
- 2.The plaintiff to file and serve a supplementary list of witnesses and supplementary list of documents within seven (7) days from today
- 3.The defendant will have corresponding leave to file and serve any further document(s) in rebuttal within seven (7) days from the date of service upon them
- 4.The costs of the application shall be borne by the plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction under Section 3A of the Civil Procedure Act, guided by Sections 1A and 1B and Articles 159(2)(b) and (d) of the Constitution of Kenya
Relief refused
#Plaintiff's prayer that the defendant be condemned to pay costs of the application
The substitution was sought by the plaintiff and the defendant had a right to oppose the application
Costs
The costs of the application shall be borne by the plaintiff
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.
The application dated 17/3/2025 is hereby allowed;
The plaintifi to file and serve a supplementary list of witnesses and supplementary list of documents within seven (7) days from today;
The defendant will have corresponding leave to file and serve any further document(s) in rebuttal within seven (7) days from the date of service upon them;
The costs of the application shall be borne by the plaintifi.
I do not see any prejudice that will be occasioned to the defendant if the application is allowed. In any event, the defendant will have an opportunity to cross-examine the substitute doctor or challenge his evidence.
Issues in the judgment
#The judgment states the original medical report is dated 28th June 2027, which is a date in the future; likely a typographical error for an earlier year
The expert witness's name appears inconsistently as 'Dr. Mwende K. Ndibo' and 'Dr. Mwende K. Ndibiso' within the same judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwalalya v Dwa Estate Limited (Civil Case 259 of 2017) [2025] KEMC 229 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/229/eng@2025-09-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.