'1. The trial Court delivered a ruling on 20th August 2024, vide which it allowed the Respondent’s application dated 24th May 2024. Being aggrieved by the said decision, the Appellant (the Plaintiff in the Court below) filed the instant appeal. The appeal has 4 grounds. These are that:-
(1) That the learned trial magistrate erred in law and fact in allowing the Plaintiff’s Notice of Motion dated 24th May 2024;
(2) That the learned trial magistrate has clearly misunderstood, misapprehended, and misapplied the provisions of section 34 of the Evidence Act;
(3) That the learned trial magistrate exercised his discretion capriciously and or arbitrarily and undermined the appellant’s right to a fair hearing and or trial; and
(4) That the learned trial magistrate failed to consider the binding judicial precedents of stare decisis.
2. The application sought to have the ruling of the magistrate dated 20th August 2024 set aside and the ruling replaced with an order dismissing the Notice of Motion dated 24th May 2024 with costs to the appellant.
3. In the Notice of Motion dated 24th May 2024, the Respondent, then the Plaintiff, sought orders to wit that:-
1. The evidence of the deceased, Karisa Kombe Nzai, which was taken before the Honourable Hon Rabera at an earlier stage of the proceedings, is admissible in evidence for the purpose of proving the facts which it states; and
2. That the costs of this application be provided for.
4. The basis upon which the application was grounded was that the Plaintiff died on 13th August 2023 after he had given evidence. It was stated that the deceased was the only eyewitness to the accident and that the evidence he had given earlier was crucial. Lastly, it was stated that the Evidence Act, at section 34 thereof, permits the Court to admit such evidence.
5. The application was opposed. The Appellant (the defendant in the suit before the lower Court) filed Grounds of Opposition in which it was urged that no basis had been laid for the said orders to issue.
6. The Court below considered the application, the response thereto, as well as the submissions of the parties. In a terse ruling, the Hon Nyariki, SRM, found that:-
“Normally, under section 34 of the Evidence Act, the proceedings and or the judgment of the Court is used as evidence in a subsequent case, and can be relied on in a related case instead of recalling the witness.
For this reason, I find that the Notice of Motion application dated 24th May 2024 is merited and the same is allowed. The evidence tendered by the deceased Plaintiff is hereby admitted as evidence in this case. There shall be orders as to costs.”
7. This is the ruling that the Appellant is aggrieved with. The Appellant contends that the learned magistrate did not correctly analyze the law and arrived at a decision that is not properly grounded.
8. The appeal proceeded by way of written submissions. I shall state a summary of each party’s submissions below.
9. The submissions of the Appellant are dated 10th March 2025. In the said submissions, Mr Jengo, learned counsel for the Appellant, urged that the learned magistrate did not attempt to analyze and determine if the Respondent had met the threshold for the issuance of the orders sought.
10. Replying on the case of Patriotic Guards Ltd v James Kipchirchir Sambu [2018] KECA 799 (KLR) counsel urged that this Court would be justified to interfere with the decision of the Court below as the learned magistrate did not consider the, principles applicable to such proceedings, that even in admitting the evidence he did not follow the proper procedure and that in essence what he did was to conduct the full trial by affidavits.
11. It was contended further that the Appellant did not have an opportunity to cross-examine the deceased. He urged that since the previous proceedings had been set aside, the matter reverted to its original starting point as if no evidence had been tendered.
12. The Appellant submitted that admission of such evidence would amount to allowing hearsay evidence. In support of his contention, counsel relied on the case of Moses Ngichu Kariuki vs Republic [2009]eKLR and Anyona v Wells Oil Limited & 2 others [2023] KEHC 26833 (KLR). He submitted that allowing the hearing to proceed without allowing the appellant to cross-examine amounted to a violation of the appellant''s right to a fair hearing.
13. Mr Jengo submitted that they did not cross-examine the deceased. According to him, section 34 of the Evidence Act required that both parties must have participated in the initial proceedings and that the other party must have had an opportunity to cross-examine the witness. In this case, there was no such opportunity for the appellant as the initial proceedings were undefended.
14. He urged that section 84 of the Evidence Act could not save the day for the Respondent either, as what was in issue was not the validity of the proceedings but whether hearsay evidence could be adduced. Lastly, he urged that the proceedings before the Court below had been set aside and thus there were no proceedings or evidence on record to be adopted under section 34 of the Evidence Act.
15. The submissions of the Respondents, on the other hand, are dated 31st March 2025.
16. It was urged that what the Court had to determine was whether the principles in section 34(1) of the Evidence Act had been met. The Respondent submitted that the Appellant’s submissions in respect of a procedure to be used in adducing evidence under section 34 of the said Act were absurd as the Plaintiff was deceased and could not testify from the grave.
17. The Respondent’s counsel. Mr Ousa Okello denied that the Appellant had not had an opportunity to cross-examine the witness. He submitted that the ex parte judgment was set aside on the grounds that the defence raised triable issues, not for want of service as alleged. Counsel denied that the effect of settling aside the ex parte judgment was that the matter reverted to its original status.
18. It was urged that in interpreting the provision of section 34 of the Evidence Act, this Court should consider the plain meaning of the statute and the intention of Parliament. Mr Ousa Okello submitted that the decision of the Court of Appeal in Abdi Adan Mohamed v Republic [2017] KECA 517 (KLR) was per incuriam or was obiter dictum.
19. It was urged that the evidence in question was relevant and admissible.
20. Counsel therefore urged that the appeal be dismissed.
21. Was the Court below right to admit the previous evidence of the deceased plaintiff? What orders should be issued in the instant appeal? To answer these questions, I must consider what section 34 of the Evidence Act provides.
22. The said section provides as follows:-
“34. (1) Evidence given by a witness in a judicial proceeding is admissible in a subsequent judicial proceeding or at a later stage in the same proceeding, for the purpose of proving the facts which it states, in the following circumstances:-
(a) where the witness is dead, or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or where his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable, and where, in the case of a subsequent proceeding-
(b) the proceeding is between the same parties or their representatives in interest; and
(c) the adverse party in the first proceeding had the right and opportunity to cross-examine; and
(d) the questions in issue were substantially the same in the first as in the second proceeding.
(2)For the purposes of this section—
(a) the expression “judicial proceeding” shall be deemed to include any proceeding in which evidence is taken by a person authorized by law to take that evidence on oath; and
(b) a criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused.”
23. I have considered the provision of section 34(1) of the Evidence Act. in my view, section 34(1) (a) provides the circumstances under which the previously adducted evidence can be adduced. This is where a witness is dead, cannot be found or incapable of giving evidence or cannot be produced without expenditure of time and resources that are unreasonable in the circumstances of the case. The said section qualities the applicability of the provision by using the conjunctive word “and” states that such evidence may only be used if 3 elements are present:-
1. The proceedings are between the same parties, or their representatives in interest;
2. The adverse party in the first proceedings had the right and opportunity to cross examines; and
3. The questions in issue were substantially the same in the first and the second proceedings.
24. There is no doubt that Karisa Kombe Nzai is deceased. He is therefore not able to attend Court to give evidence. In the circumstances, the necessary element under section 34(1) (a) of the Evidence Act has been met. I must now turn to Section 34(b) (c) and (d of the said Act. As earlier stated, the requirements are conjunctive. The elements set out in section 34 of the Evidence Act must all be present. The absence of one would be a death knell to the application seeking the adduction of prior adduced evidence. Was the test met in this case?
25. Before answering the question, I must point out that section 34 of the Evidence Act seeks to protect the right to fair trial in two ways, firstly by recognizing that there may be situations where the witness may not be recalled and secondly by limiting production of such prior obtained evidence to situations where the opposite party had an opportunity to cross examine the witness. Is that the case in this matter?
26. I note from my perusal of the proceedings that the matter previously proceeded exparte. The evidence sought to be produced was not subjected to cross-examination. Upon the appellant''s application, the ex parte proceedings were set aside on the ground that the proposed defence raised triable issues. My view is that the setting aside of the previous proceedings rendered them a nullity and precluded their admissibility as evidence under Section 34 of the Evidence Act. To accept the argument of the Respondent would lead to absurd results. Whereas it is true that an exparte hearing previously occurred, the said hearing was a nullity at law and could not amount to previous proceedings, to which the interpartes hearing that followed could be said to be a “subsequent” hearing. The ex parte hearing was thus a hearing in a historical sense, rather than a legal one.
27. In my view, the right of a party to face and cross-examine its accuser is a central plank of the right to a fair trial. This had been recognized in many decisions of the Court. In the case of Abdi Adan Mohamed v Republic [2017] KECA 517 (KLR), it was held that:-
“The language of Section 34 is wide enough to encompass situations where the witness who had already testified is dead, or cannot be found, or is incapable of giving evidence, or is prevented by the accused person from attending court, or where his presence cannot be obtained without an amount of delay or expense which in all fairness would be unreasonable. In such a case, the evidence recorded by the previous trial magistrate or judge is admissible in the trial by the succeeding magistrate or judge. To resort to previously recorded evidence under Section 34, the proceeding must be between the same parties as the previous proceeding and in criminal trial the parties are deemed to be the prosecutor and the accused person; the adverse party in the first proceeding had the right and opportunity to cross-examine the witnesses; and the questions in issue were substantially the same in the first as in the second proceeding.”
28. The Court of Appeal went on to rule that:-
“For the reason that the trial magistrate failed to establish why the witnesses could not be called and instead went ahead for review his own order without giving the appellant an opportunity to comment on the prosecution application, there was a mistrial. Though alive to the history of the trial, the learned Judges merely agreed with the course employed by the learned magistrate to adopt the evidence presented before his predecessor, but erred for failing to interrogate whether there was any basis for the magistrate to do so without establishing why the witnesses were unavailable.”
29. A similar holding was made on the case Charles Mwithali vs Julius Bariu M’Itobi [1988]eKLR.
30. In his submissions, the counsel for the Respondent urged that the decision of the Court of Appeal in the Abdi Adam Mohamed case was per incuriam and that I should not rely on it as it was contrary to the statute. I disagree with that contention.
31. Having concluded as I have done that the Appellant would be denied a chance to cross-examine the witness and that his right to a fair trial would then have been infringed, would this Court be right to interfere with the decision of the trial Court? In the case of Patriotic Guards Ltd v James Kipchirchir Sambu [2018] KECA 799 (KLR), the Court of Appeal stated as follows:-
“The principles upon which this Court will interfere with the exercise of a judge’s discretion in the lower court are also well known and settled. The Court of Appeal can only interfere with the exercise of a trial court’s judicial discretion if satisfied that the judge misdirected himself on law; or that he misapprehended the facts; or that he took into account considerations of which he should not have; or that he failed to take into account considerations which he should have; or that his decision, albeit a discretionary one, was plainly wrong. (See Mbogo & Another v Shah (1968) EA 93; Mrao Ltd v First American Bank of Kenya Ltd & 2 others (2003) eKLR).”
32. Although the Court of Appeal was referring to the High Court in the above-stated matter, the principles in my view apply to an appeal from the Chief Magistrate’s Court to the High Court.
33. I have perused and considered the decision of the Court below. I agree with the Appellant’s counsel that the learned magistrate does not appear to have considered the matter with due care. In the circumstances, this Court is entitled to interfere with the said decision. The learned magistrate misdirected himself on the applicable law and failed to consider matters that he should have taken into account. His decision, therefore, cannot stand and must be set aside.
34. Under the circumstances, I allow the appeal and set aside the impugned decision. I award the appellant the costs of the appeal.
35. It is so ordered.
Dated and signed at Mombasa, this 25th day of August 2025. Delivered virtually through Microsoft TEAMS.
'
(1) That the learned trial magistrate erred in law and fact in allowing the Plaintiff’s Notice of Motion dated 24th May 2024;
(2) That the learned trial magistrate has clearly misunderstood, misapprehended, and misapplied the provisions of section 34 of the Evidence Act;
(3) That the learned trial magistrate exercised his discretion capriciously and or arbitrarily and undermined the appellant’s right to a fair hearing and or trial; and
(4) That the learned trial magistrate failed to consider the binding judicial precedents of stare decisis.
2. The application sought to have the ruling of the magistrate dated 20th August 2024 set aside and the ruling replaced with an order dismissing the Notice of Motion dated 24th May 2024 with costs to the appellant.
3. In the Notice of Motion dated 24th May 2024, the Respondent, then the Plaintiff, sought orders to wit that:-
1. The evidence of the deceased, Karisa Kombe Nzai, which was taken before the Honourable Hon Rabera at an earlier stage of the proceedings, is admissible in evidence for the purpose of proving the facts which it states; and
2. That the costs of this application be provided for.
4. The basis upon which the application was grounded was that the Plaintiff died on 13th August 2023 after he had given evidence. It was stated that the deceased was the only eyewitness to the accident and that the evidence he had given earlier was crucial. Lastly, it was stated that the Evidence Act, at section 34 thereof, permits the Court to admit such evidence.
5. The application was opposed. The Appellant (the defendant in the suit before the lower Court) filed Grounds of Opposition in which it was urged that no basis had been laid for the said orders to issue.
6. The Court below considered the application, the response thereto, as well as the submissions of the parties. In a terse ruling, the Hon Nyariki, SRM, found that:-
“Normally, under section 34 of the Evidence Act, the proceedings and or the judgment of the Court is used as evidence in a subsequent case, and can be relied on in a related case instead of recalling the witness.
For this reason, I find that the Notice of Motion application dated 24th May 2024 is merited and the same is allowed. The evidence tendered by the deceased Plaintiff is hereby admitted as evidence in this case. There shall be orders as to costs.”
7. This is the ruling that the Appellant is aggrieved with. The Appellant contends that the learned magistrate did not correctly analyze the law and arrived at a decision that is not properly grounded.
8. The appeal proceeded by way of written submissions. I shall state a summary of each party’s submissions below.
9. The submissions of the Appellant are dated 10th March 2025. In the said submissions, Mr Jengo, learned counsel for the Appellant, urged that the learned magistrate did not attempt to analyze and determine if the Respondent had met the threshold for the issuance of the orders sought.
10. Replying on the case of Patriotic Guards Ltd v James Kipchirchir Sambu [2018] KECA 799 (KLR) counsel urged that this Court would be justified to interfere with the decision of the Court below as the learned magistrate did not consider the, principles applicable to such proceedings, that even in admitting the evidence he did not follow the proper procedure and that in essence what he did was to conduct the full trial by affidavits.
11. It was contended further that the Appellant did not have an opportunity to cross-examine the deceased. He urged that since the previous proceedings had been set aside, the matter reverted to its original starting point as if no evidence had been tendered.
12. The Appellant submitted that admission of such evidence would amount to allowing hearsay evidence. In support of his contention, counsel relied on the case of Moses Ngichu Kariuki vs Republic [2009]eKLR and Anyona v Wells Oil Limited & 2 others [2023] KEHC 26833 (KLR). He submitted that allowing the hearing to proceed without allowing the appellant to cross-examine amounted to a violation of the appellant''s right to a fair hearing.
13. Mr Jengo submitted that they did not cross-examine the deceased. According to him, section 34 of the Evidence Act required that both parties must have participated in the initial proceedings and that the other party must have had an opportunity to cross-examine the witness. In this case, there was no such opportunity for the appellant as the initial proceedings were undefended.
14. He urged that section 84 of the Evidence Act could not save the day for the Respondent either, as what was in issue was not the validity of the proceedings but whether hearsay evidence could be adduced. Lastly, he urged that the proceedings before the Court below had been set aside and thus there were no proceedings or evidence on record to be adopted under section 34 of the Evidence Act.
15. The submissions of the Respondents, on the other hand, are dated 31st March 2025.
16. It was urged that what the Court had to determine was whether the principles in section 34(1) of the Evidence Act had been met. The Respondent submitted that the Appellant’s submissions in respect of a procedure to be used in adducing evidence under section 34 of the said Act were absurd as the Plaintiff was deceased and could not testify from the grave.
17. The Respondent’s counsel. Mr Ousa Okello denied that the Appellant had not had an opportunity to cross-examine the witness. He submitted that the ex parte judgment was set aside on the grounds that the defence raised triable issues, not for want of service as alleged. Counsel denied that the effect of settling aside the ex parte judgment was that the matter reverted to its original status.
18. It was urged that in interpreting the provision of section 34 of the Evidence Act, this Court should consider the plain meaning of the statute and the intention of Parliament. Mr Ousa Okello submitted that the decision of the Court of Appeal in Abdi Adan Mohamed v Republic [2017] KECA 517 (KLR) was per incuriam or was obiter dictum.
19. It was urged that the evidence in question was relevant and admissible.
20. Counsel therefore urged that the appeal be dismissed.
21. Was the Court below right to admit the previous evidence of the deceased plaintiff? What orders should be issued in the instant appeal? To answer these questions, I must consider what section 34 of the Evidence Act provides.
22. The said section provides as follows:-
“34. (1) Evidence given by a witness in a judicial proceeding is admissible in a subsequent judicial proceeding or at a later stage in the same proceeding, for the purpose of proving the facts which it states, in the following circumstances:-
(a) where the witness is dead, or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or where his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable, and where, in the case of a subsequent proceeding-
(b) the proceeding is between the same parties or their representatives in interest; and
(c) the adverse party in the first proceeding had the right and opportunity to cross-examine; and
(d) the questions in issue were substantially the same in the first as in the second proceeding.
(2)For the purposes of this section—
(a) the expression “judicial proceeding” shall be deemed to include any proceeding in which evidence is taken by a person authorized by law to take that evidence on oath; and
(b) a criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused.”
23. I have considered the provision of section 34(1) of the Evidence Act. in my view, section 34(1) (a) provides the circumstances under which the previously adducted evidence can be adduced. This is where a witness is dead, cannot be found or incapable of giving evidence or cannot be produced without expenditure of time and resources that are unreasonable in the circumstances of the case. The said section qualities the applicability of the provision by using the conjunctive word “and” states that such evidence may only be used if 3 elements are present:-
1. The proceedings are between the same parties, or their representatives in interest;
2. The adverse party in the first proceedings had the right and opportunity to cross examines; and
3. The questions in issue were substantially the same in the first and the second proceedings.
24. There is no doubt that Karisa Kombe Nzai is deceased. He is therefore not able to attend Court to give evidence. In the circumstances, the necessary element under section 34(1) (a) of the Evidence Act has been met. I must now turn to Section 34(b) (c) and (d of the said Act. As earlier stated, the requirements are conjunctive. The elements set out in section 34 of the Evidence Act must all be present. The absence of one would be a death knell to the application seeking the adduction of prior adduced evidence. Was the test met in this case?
25. Before answering the question, I must point out that section 34 of the Evidence Act seeks to protect the right to fair trial in two ways, firstly by recognizing that there may be situations where the witness may not be recalled and secondly by limiting production of such prior obtained evidence to situations where the opposite party had an opportunity to cross examine the witness. Is that the case in this matter?
26. I note from my perusal of the proceedings that the matter previously proceeded exparte. The evidence sought to be produced was not subjected to cross-examination. Upon the appellant''s application, the ex parte proceedings were set aside on the ground that the proposed defence raised triable issues. My view is that the setting aside of the previous proceedings rendered them a nullity and precluded their admissibility as evidence under Section 34 of the Evidence Act. To accept the argument of the Respondent would lead to absurd results. Whereas it is true that an exparte hearing previously occurred, the said hearing was a nullity at law and could not amount to previous proceedings, to which the interpartes hearing that followed could be said to be a “subsequent” hearing. The ex parte hearing was thus a hearing in a historical sense, rather than a legal one.
27. In my view, the right of a party to face and cross-examine its accuser is a central plank of the right to a fair trial. This had been recognized in many decisions of the Court. In the case of Abdi Adan Mohamed v Republic [2017] KECA 517 (KLR), it was held that:-
“The language of Section 34 is wide enough to encompass situations where the witness who had already testified is dead, or cannot be found, or is incapable of giving evidence, or is prevented by the accused person from attending court, or where his presence cannot be obtained without an amount of delay or expense which in all fairness would be unreasonable. In such a case, the evidence recorded by the previous trial magistrate or judge is admissible in the trial by the succeeding magistrate or judge. To resort to previously recorded evidence under Section 34, the proceeding must be between the same parties as the previous proceeding and in criminal trial the parties are deemed to be the prosecutor and the accused person; the adverse party in the first proceeding had the right and opportunity to cross-examine the witnesses; and the questions in issue were substantially the same in the first as in the second proceeding.”
28. The Court of Appeal went on to rule that:-
“For the reason that the trial magistrate failed to establish why the witnesses could not be called and instead went ahead for review his own order without giving the appellant an opportunity to comment on the prosecution application, there was a mistrial. Though alive to the history of the trial, the learned Judges merely agreed with the course employed by the learned magistrate to adopt the evidence presented before his predecessor, but erred for failing to interrogate whether there was any basis for the magistrate to do so without establishing why the witnesses were unavailable.”
29. A similar holding was made on the case Charles Mwithali vs Julius Bariu M’Itobi [1988]eKLR.
30. In his submissions, the counsel for the Respondent urged that the decision of the Court of Appeal in the Abdi Adam Mohamed case was per incuriam and that I should not rely on it as it was contrary to the statute. I disagree with that contention.
31. Having concluded as I have done that the Appellant would be denied a chance to cross-examine the witness and that his right to a fair trial would then have been infringed, would this Court be right to interfere with the decision of the trial Court? In the case of Patriotic Guards Ltd v James Kipchirchir Sambu [2018] KECA 799 (KLR), the Court of Appeal stated as follows:-
“The principles upon which this Court will interfere with the exercise of a judge’s discretion in the lower court are also well known and settled. The Court of Appeal can only interfere with the exercise of a trial court’s judicial discretion if satisfied that the judge misdirected himself on law; or that he misapprehended the facts; or that he took into account considerations of which he should not have; or that he failed to take into account considerations which he should have; or that his decision, albeit a discretionary one, was plainly wrong. (See Mbogo & Another v Shah (1968) EA 93; Mrao Ltd v First American Bank of Kenya Ltd & 2 others (2003) eKLR).”
32. Although the Court of Appeal was referring to the High Court in the above-stated matter, the principles in my view apply to an appeal from the Chief Magistrate’s Court to the High Court.
33. I have perused and considered the decision of the Court below. I agree with the Appellant’s counsel that the learned magistrate does not appear to have considered the matter with due care. In the circumstances, this Court is entitled to interfere with the said decision. The learned magistrate misdirected himself on the applicable law and failed to consider matters that he should have taken into account. His decision, therefore, cannot stand and must be set aside.
34. Under the circumstances, I allow the appeal and set aside the impugned decision. I award the appellant the costs of the appeal.
35. It is so ordered.
Dated and signed at Mombasa, this 25th day of August 2025. Delivered virtually through Microsoft TEAMS.
'