Jonah Kyalo Mbevi VS William Ngenda Mbevi AND James Muema Mbevi

RULING

1. The application before me is Notice of Motion under section 3A, of the Civil procedure Act Cap 21, section 146 (4) of the Evidence Act, Chapter 80 Laws of Kenya, Order 18 Rule 10, Order 51 Rule 1 of the Civil Procedure rules and Article 159 of the Constitution of Kenya, seeking Orders :
2. An order does hereby issue granting leave to the defendants to re-open the defendants’ case limited to the production of the letter dated 9^th October 2022 by Mr. Joel Matheka, a sub-county agricultural officer for Ukia Ward an examining of the officer.
3. An order does hereby issue directing Mr. Joel Matheka, a sub-county agricultural officer for Ukia Ward to appear in court for further hearing in the matter and examining by parties.
4. That the costs of this application be provided for.

2. The grounds for the application are inter alia that:

1. This honourable court heard the present case, which is predicated on a letter dated 30^th March 2020 by Mr. Joel Matheka, a sub-county agricultural officer for Ukia Ward to conclusion. The defendants closed their case on 24^th May 2023.
2. Subsequent to the close of the defendant case, it has come to the attention of the defendants that on 9^th October 2022 the said agricultural officer prepared another letter retracting the contents of the 30^th March 2020 letter.
3. This evidence was not available to the defendants as at the time of close of the defendants’ case and this application has been brought timeously.
4. Neither will the plaintiff be prejudiced nor embarrassed if the orders sought herein are granted as the parties will all have an opportunity to put for the questions to the witness.
5. The interest of justice favours the grant of orders sought herein.
6. The application is supported by the affidavit of James Muema Mbevi sworn on 14/06/2023 where he depones that:

• That the plaintiff herein instituted the present suit on 30^th November 2020 claiming compensation in the sum of Kshs. 34,160,000.00 as against me and the 1^st defendant. The said amount was predicated on a letter dated 30^th March 2020 by Mr. Joel Matheka, a sub-county agricultural officer for Ukia Ward.
• That this Honourable court previously heard the parties in the matter with the defendants closing their case on 24^th May 2022. Subsequent to the close of the defendants’ case he learned that the said agricultural officer had since prepared another letter dated 9^th October 2022 seeking to retract the earlier letter.
• That he is advised by his advocates on record and which advice he holds to be correct that the subsequent letter dated 9^th October 2022 brings a new angle to the present case as it impeaches the foundation of the plaintiff’s claim for Kshs. 34,160,000.00.
• That following the subsequent letter date 9^th October 2022 and the facts of the case, it is clear that there is the need for the said officer to be examined on his decision to retract his earlier letter, which was evidence that formed the foundation of the plaintiff’s case.
• That the letter dated 9^th October was not available to the defendants at time of the close of the defendant’s case on 24^th May 2022.
• That this application has been brought without undue delay on the part of the defendants
• That neither will the plaintiff be prejudiced nor embarrassed if the orders sought herein are granted as the parties will all have an opportunity to examine the witness.

1. The said letter dated 9^th October 2022 is annexed as JM – 1 and it states:

UKIA/AGRIC/CROP DAMAGE/VOL.2 (127)

Mukuyuni Police Post

Box 303

Makueni

RE: CROP DAMAGE ASSESSMENT AND COMPENSATION REPORT WITHDRAWAL AND RECANTING

Please refer to UKIA/AGRIC/CROP DAMAGE/1/VOL. 2(35) of  date 30^th/3/2020 relying to OB NO.5/24/03/2020 for Jonah Mbevi and others.

As the above subject refers this office wishes to advice that the report which was written to your office with reference to your letter dated 24/10/2020 has been withdrawn and recanted.

This office gathered information that the plot in question has a succession case in court (Succession Cause No. 14 of 2019) and which this office was not informed of by the time the said report was done.

This office therefore wishes to advice that such a report cannot be used to the benefit or disadvantage of the complainant or the accused. We don’t do assessments in areas where there is a court process in place and we regret that this actually happened.

Please find the report as attached.

Kindly inform the concerned parties of this development.

Regards.

…………….

Joel Matheka

WAO

Ukia Ward

Cc. Sub County Agriculture Officer

1. The recanted Report was dated 30^th March 2020 and stated:

UKIA/AGRIC/CROP DAMAGE/VOL 2(35)

Mukuyuni Police Base

Box 303

Makueni

RE: MALICIOUS CROP DAMAGE ASESSMENT AND COMPENSATION REPORT FOR JONAH KYALO MBEVI VS WILLIAM NG’ENDA MBEVI & JAMES MUEMA MBEVI

Reference is hereby made to your letter dated 24/03/2020. OB 5/24/03/2020 requesting the above cited. A physical farm visit was done below are the findings.

1. 152 mature citrus plants cut down by use of a power saw and others uprooted
2. 96 mature mango plants cut down by use of power saw. Further went ahead to cut the mango plants into small pieces for fire wood. Evidence on site as observed

The calculation below is based on the findings:

152 citrus plants cut down x 6,500 plant x (20 years economic life span) = Kshs.19,760,000.

96 mango plants cut down x 7500 plant x (20 years economic life span)= 14,400,000

Total = 34,160,000

Regards

Joel Matheka

WAO

Ukia Ward

Cc: Sub – county agricultural officer – Kaiti.

1. The application is opposed vide the replying affidavit of Jonah Kyalo Mbevi sworn on 7/8/2023. He depones inter alia that:

“…That I am aware of the letter dated 30^th March 2020 which was prepared by an agricultural officer from Makueni county confirming the extent of the damage and loss suffered after my fruit crops which had been destroyed by the defendants;That I am also aware that the subsequent letter which an officer from the same office now has written and through it seeks to withdraw the earlier letter on which testimony had been taken during the hearing arguing that he had later on discovered that the plot in question had a succession cause in court. This was done after he had also testified in court in support of the report made earlier.; That the issue under contention in this matter has always been destruction of my fruit trees which I had planted on our ancestral land belonging to our late father with the knowledge of all family members including the defendants as confirmed during the hearing of the case and these fruit trees were my main source of livelihood. The succession cause does not therefore invalidate the fact that my fruit trees were destroyed and neither should it be a justification for limitation to my right to own fruit trees which I planted on our father’s land and thus lose out on compensation; That I have been advised by my advocates on record and which advice I truly believe that the reason given by the agricultural officer in wanting to recant an official report which assessed losses I suffered is mainly based on the pretext that where there is an ending succession cause, no loss can be suffered which is clearly frivolous and unfair to me and unjust to the extreme; That I have further been advised that the defendant’s proposal to re-open the case would be interfering with the court’s duty under Article 159(2)(c ) to render justice without undue delay and technicalities which is clearly what the defendants as seeking to do through the alleged officer; That the delay will consequently cause me injustice since I used to use the proceeds from fruit farming to pay for my children’s school fees and also for medical treatment and I have been struggling to cater for the same since the incident and if the case is re-opened I would continue struggling; That I have been further advised by my advocates on record which advice I verily believed to be true that the dispute before the court is whether or not fruit trees planted by myself were destroyed by the defendants and not whether or not the properties making up our father’s estate have been distributed;That I have also been advised by my advocates that the defendants’ application should be based on whether the court should consider the additional evidence or not. They have further advised me that from previous court cases, the courts have always emphasized that the question of whether additional evidence should be taken at the trial is considered separately from the question of whether the case should be reopened; That it is notable that my advocates have already complied and filed final submissions as directed by the honourable court and the defendants instead of filing their final submissions upon closure of the hearing, they are seeking to re-open the case by trying to get the assistance of a witness to recant their evidence which was just but confirmatory evidence on the extent of the damage I had suffered when my fruit trees and other trees were destroyed; That the application before the honourable court does not seek to add any additional evidence for the court to consider but to reduce the evidence which was already admitted with the involvement of all the parties and therefore is a clever way of perpetuating the injustice which I continue to suffer as this matter pends in court.

1. James Muema Mbevi filed a further affidavit and reiterated the contents of his supporting affidavit adding that it  was necessary for the court to get to know the circumstances of the withdrawal of the assessment report by its maker as it was  of significance in determining the instant case. That the same raised the issue of ownership of the allegedly destroyed trees, a significant element in the success or otherwise of the present case, and that it was in the interest of justice for the court to recall the agricultural officer to offer clarity on this.
2. He deponed further that the reason for the agricultural officer’s recanting of his previous letter which forms the basis of the plaintiff’s claim can only be ascertained by cross-examination of the officer, and that he had been advised by counsel that that could not be inimical to Article 159(2)(b) of the Constitution on delivery justice without undue  delay as it would shed light on the viability or otherwise of the instant case and thus facilitate the court’s delivery of justice to the parties herein.
3. He deponed that he too had equally complied and filed their written submissions dated 7^th November 2022 but the the subsequent discovery of a letter recanting the initial letter forming the basis of the plaintiff’s claim, had prompted this application
4. Parties agreed to file written submissions.
5. For the applicant it is submitted that the issue for determination is whether the defendants have made a case for the re-opening of the defendant’s case as requested.
6. I have not seen the submissions by the plaintiff/respondent.
7. I have considered the submissions and I agree that the only issue is whether the applicant has made a case for re-opening of the case. The connected issue is whether allowing this application would be inimical to the provisions of Article 159(2) (d)on the requirement that delivery of justice be without delay.
8. It is not in dispute that the agricultural officer’s testimony was at the heart of the case for the plaintiff – as it is the evidence that creates the basis for the value of the claim by the plaintiff. The question is what is the effect of the alleged recanting of the previous assessment – and can a witness recant evidence given in court vide a mere letter? Can the court ignore what is expressed in the letter that there is a policy not to do reports in matters where there is a dispute? Or that the letter comes two years after the report?
9. In my view these are critical questions that can only be answered by the maker of both the documents.
10. While there is no express provision saying that courts can reopen cases, there is provision for recalling witnesses. Section 146(4) the Evidence Act states that 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 the right of further cross-examination and re-examination respectively.
11. Order 18 Rule 10 of the Civil Procedure Rules 2010: provides that the court may at any stage of the suit recall any witness who has been examined, and may, subject to the law of evidence for the time being in force; put such questions to him as the court thinks fit.
12. I am guided by the authorities cited by the defendants/applicants –

Raindrops Limited v County Government of Kilifi (2020) e KLR; Malindi High Court Civil Case No. 9 of 2015 where an application was made to re-open the plaintiff’s case for purposes of adducing audio-visual evidence contained in the statement of one of the plaintiff’s witnesses. The application was allowed on basis that it would facilitate the determination of the dispute between the parties. The court stated

It is thus my finding that this court is obligated to consider the evidence sought to be introduced, so as to determine the real issues in controversy and dispense justice to the parties, and any prejudice caused to the defendant in this regard can be cured by such further orders as may be necessary.

In view of my foregoing findings I am inclined to exercise my discretion in favour of the applicant but on terms that will ensure that the re-opened case will be concluded without any further unnecessary delay. I however, do not think that it is in the interest of justice to give an open ended order. The re-opening must be done within clearly defined parameters so as not to throw the proceedings generally open and cause delay.

1. In Barudhi Bundi Vs Domitila obala Ouma & 2 Others [2022] e KLR the court held that it was in the interest of justice that the case be re-opened to enable parties adduce additional evidence; In Njugi Kagia v Buci Limited [2019] eKLR the court allowed a re-opening for purposes of cross and re-examination of a witness.
2. It was submitted for the applicant that this case is a deserving the grant of the request for the recalling of Mr. Joel Matheka for cross examination on the document that that he filed.
3. The agricultural officer had testified in court as an expert witness – he then proceeded to write a letter stating that he was recanting that evidence the court could have two options – to ignore the  letter on the basis that there was on record sworn evidence of  the  agricultural officer. Or recall the officer to explain his position as the expert witness.
4. Having considered the record and the submissions on record, ad as a court of justice, it is my view that the application is merited for the limited reason of the cross examination of the agricultural officer on his letter of 9^th October 2022.
5. In the circumstances the applicant is allowed as prayed.
6. The witness Joel Matheka be and is hereby summoned to appear in court on a date to be given as per the court diary to testify on the new letter and to be cross examined on the same. 
7. Costs in the cause

Dated signed and delivered, this 31st   May 2024

……………………………….

MUMBUA T. MATHEKA

JUDGE

NB: paragraphing distorted by the system