This matter is partly heard. The 1st and 2nd Plaintiffs have fully testified before court in support of the Plaintiffs case. The third Plaintiff and who is their mother and donee of a Power of Attorney was listed in the proceedings as a witness and filled a witness statement.
After the 1st and 2nd Plaintiffs gave their evidence Mr. Musyimi their counsel informed the court that he had instructions to close the Plaintiffs case without calling the 3rd Plaintiff as a witness. However an objection was raised by Mr. Otwere counsel for the 11th and 17th Defendants. The grounds for the objection were mainly that his clients would be denied an opportunity to cross examine the 3rd Plaintiff and who was at the center of the impugned transaction that gave rise to the present proceedings. That his client never dealt with the other two plaintiffs but the 3rd Plaintiff. That the evidence adduced by PW1 and PW2 was all circumstantial. Further that no reasons had been advanced as to why the 3rd plaintiff would not take the witness stand when it would be necessary that she is cross examined on interalia the documents produced.
In response Mr. Musyimi stated that the Plaintiffs were satisfied with what they had presented before court, that all documents were supplied to all the parties and that there was need to save on time and process. Ms. Muyaa for 14, 15, and 18 intimated to the court that while she was not aggrieved by the proposal to close the Plaintiffs case the 3rd Plaintiff had earlier on given her evidence in chief before Yano J but was stood down. Following this disclosure I reserved my ruling on the objection for deliverance via email to enable the court review the said proceedings.
I have reviewed the proceedings and noted that sometime in February 2018 the 3rd Plaintiff gave evidence in chief as PW1. At the beginning of cross examination by Ms. Muyaa it was noted some bundle of documents and were not properly paginated posing challenges. Further that some of the defendants were not present without indication of service. The witness was stood down to enable re-pagination and service. However in January 2019 parties agreed that the evidence be expunged from the record and the matter to start denovo.
I have considered Mr. Otwere’s concerns and I note from the paragraphs 36 of the Plaint that Mr. Omuya of Hezron Gekonde & Co. Advocates acted as joint vendor purchaser advocate in the transaction. The Plaintiffs have elected with the benefit of representation by an advocate not to call as their witness the 3rd Plaintiff whom they had lined up as a witness. This is a risk they have chosen to take. The suit belongs to the Plaintiffs and it is my view they are at liberty to decide to scale down their witnesses as they may wish and the court cannot compel them otherwise. Mr. Otwere did not lead the court to any authority or law to support his plea. My hands are tied as a neutral arbiter and I do not see any merit in compelling the Plaintiff to proceed with the 3rd Plaintiff as a witness.
I have noted Mr. Musyimi’s suggestion on the possibility of Mr. Otwere recalling either of the Plaintiffs witnesses with a view to further cross examination. However this court would be hesitant to take this direction. Mr. Otwere is a professional in his own right, had the benefit of all the documents produced and therefore properly seized of the brief to enable appropriate cross examination and which he did. I would not exercise my discretion in support of the suggestion.
This court therefore directs that the plaintiff’s case shall be deemed as duly closed. The matter shall proceed for hearing on the 29th and 30th July 2024. Let the parties agree on whether the defense hearing shall be held physically or virtually. This shall be communicated to the court through the DR ELC by close of business on 1st July 2024.
Dated 30th April 2024