In re Estate of Solomon Ngari (Deceased) [2022] KEHC 10492 (KLR)

In re Estate of Solomon Ngari (Deceased) (Succession Cause 68 of 1998) [2022] KEHC 10492 (KLR) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10492 (KLR)

Republic of Kenya

In the High Court at Nyeri

Succession Cause 68 of 1998

FN Muchemi, J

May 19, 2022

IN THE MATTER OF THE ESTATE OF SOLOMON NGARI (DECEASED) PETER GICHURU NGARI.............PETITIONER VERSUS JOSEPH WACHIRA NGARI......... 1ST PROTESTOR WILLIAM NGATIA NGARI.............2ND PROTESTOR RONALD KARIUKI NGARI.............3RD PROTESTOR ANNA WANGUI MBOGO..............4TH PROTESTOR SALOME NJOKI GACHERU.........5TH PROTESTOR DAINA WAIRIMU KINUTHIA.......6TH PROTESTOR

Ruling

Brief facts 1. This is a ruling on an oral application made by the 1st protestor in court on 30th March 2022 in which he seeks to recall the 2nd protestor as a witness for further cross-examination. The 1st protestor contends that he filed further documents to support his case on 18th November 2021 and the 2nd protestor had already testified and therefore he seeks to recall him to cross examine him on the documents. He states that the documents he filed contain very important evidence which can help the court.

2. The 2nd protestor through his counsel Mr. S.K Njuguna opposed this application and stated that he testified on 1st September 2021 and closed his case. He further argues that up until 28th September 2021, the 1st protestor had legal representation and furthermore he was present when the 2nd protestor testified. The 2nd protestor submitted that the 1st protestor is aggrieved about what he said about his character and that is why he seeks to have him recalled.

3. The petitioner also opposed the application and stated that there are six (6) protestors in the matter and that the instant case was instituted in 1988 yet it is still pending in court. As such, he states that the application is a waste of time. Moreover, the petitioner contends that the 1st protestor had legal representation during the testimony of the 2nd protestor and thus the court ought not to allow the application.

4. The law relating to this application is contained in Section 146(4) of the Evidence Act which provides:-The court may in all cases permit a witness to be recalled either for further examination in chief or for further cross-examination, and if it does so, the parties have a right of further cross-examination and re-examination respectively.

5. Recalling a witness is part of the right to a fair hearing. However, the court when faced with such an application ought to exercise its discretion judiciously and reasonably. In the instant case, the 2nd protestor testified on 20th September 2021. The 1st protestor was represented by counsel who efficiently cross examined the witness on the said date and the 2nd protestor called two witnesses and then closed his case. I have perused the court record and noted that no leave was granted to the 1st protestor to file further documents. The 1st protestor states that he filed further documents on 18th November 2021, but I note that he did not seek the court’s leave to do so neither was any leave granted to file the documents. Furthermore, the 1st protestor has not outlined how the further documents will help the court determine the case.

6. This cause was filed in 1988 and is still pending in court awaiting determination. It is on record that the 1st protestor was present in court and had legal representation when the 2nd protest testified. The counsel cross examined the 2nd protestor. Being a professional, it is not in doubt that he covered all the legal and factual issues relating to this case during cross-examination. This cause was filed in 1987 and is still pending in court 24 years later.

7. To allow recalling the witness would amount to causing further delay in this cause. In the interests of justice, the instant case ought to be disposed of expeditiously given that it is part of backlog in this court.

8. It is my finding that this application lacks merit and it is hereby dismissed with no order as to costs.

9. The further documents filed without leave by the applicant ae hereby stuck out.

10. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT NYERI THIS 19th DAY OF MAY, 2022. F. MUCHEMIJUDGERuling delivered through video link this 19th day of May, 2022.