Charles Antony Ondiek,Esaya Oyoo Wariro, William Odhiambo Wariero & Vitalis Otieno Wariero v Thomas Odhiambo Nyonje, Gideon Okech Rayola, Stephen Nyanjwa Otieno, William Kwame Otieno,Evalyne Achieng Okoth, Emanuel Otieno Onyngo & Registrar of Lands Kisumu [2017] KEHC 6759 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

CIVIL CASE NO. 63 OF 2007

CHARLES ANTONY ONDIEK …...........................1ST APPLICANT

ESAYA OYOO WARIRO …...................................2ND APPLICANT

WILLIAM ODHIAMBO WARIERO …....................3RD APPLICANT

VITALIS OTIENO WARIERO ….............................4TH APPLICANT

VERSUS

THOMAS ODHIAMBO NYONJE …...................1ST RESPONDENT

GIDEON OKECH RAYOLA …..........................2ND RESPONDENT

STEPHEN NYANJWA OTIENO ….....................3RD RESPONDENT

WILLIAM KWAME OTIENO ….........................4TH RESPONDENT

EVALYNE ACHIENG OKOTH ….......................5TH RESPONDENT

EMANUEL OTIENO ONYNGO ….....................6TH RESPONDENT

REGISTRAR OF LANDS KISUMU …...............7TH RESPONDENT

RULING

By their application dated 10/1/2017 the plaintiffs/applicants pray that;

a) The Honourable court be pleased to  reopen the plaintiffs  case.

b) The reopening be only limited to admission of documents by the Registrar of Lands  Kisumu which were marked for identification as MFI 1-80 contained in schedule two of the plaintiff list of documents dated 22/10/201 and filed on 27/10/2010.

The application is supported by the affidavit of Anthony T. Oluoch the plaintiff's counsel. He argued that after closing the  plaintiff's case he expected that the defendants were going to call the land Registrar as a witness so that he could produced   the documents which the plaintiffs had marked.  Apparently the defendants indicated that they were not going to do so.

The defendants on their part  have submitted that the applicant has come  too late in the day and that the same is solely meant to delay the  fast conclusion of this case.  That it was the mistake of the plaintiff's advocate not to call the Land Registrar and thus the said witness would simply fill the gaps on behalf of the plaintiffs.

Having read the parties submissions as well as the  numerous authorities on record, the basic argument is whether  the reopening of the plaintiffs case and  calling of the Land Registrar will prejudice the defence case.

For now the defendants have not argued their case. Clearly it was too presumptuous for the plaintiffs to imagine that the defence would call the same witnesses they were anticipating. This is  the plaintiffs case and they  ought to have exhibited their evidence.

The documents in my view which were marked would help this court arrive at a fair conclusion of this matter.  I do not think that the defendants would suffer any prejudice or at all.  They shall be at liberty  to cross examine the Land Registrar. The application in my view has  been made expeditiously and without any undue delay. I agree however that this matter has taken a long time the  both parties have in one way or the other contributed to the delay.

The provisions of Article 159 of the  Constitution  I believe applies herein. There ought to be a just conclusion of the case and speedly.

The court is  mandated to look substative justice. The issues herein revolve around  land and the Land Registrar being custodian of the  records ought to  shed more light.

In allowing the application the case shall  only be re-opened for the Land Registrar to produce the only marked documents and nothing else.  The defence  counsels shall  have the liberty and opportunity to cross-examine the said witness.

The respondent shall have the costs of this application.

Delivered on this 9th day of March 2017.

________________

H.K. CHEMITEI

JUDGE

In the presence of;

Wanyama holding brief for D.B. Onyango  for 6th defendant

S.M. Onyango for 1st, 2nd 3rd and 4th defendants

Oluoch for plaintiff

Kirong -Court Assistant