1. This Ruling relates to an informal application made on 21/11/2024 by the Defendant’s Advocates to recall the Plaintiff for cross – examination. The Plaintiff herein closed his case on 15/2/2023. At the said time the Defendant was represented by Mr. Magut Advocate. Thereafter, on the same day the Defendant partly testified as DW1, but later on sought recusal of the Court and was stood down on 15/2/2023. A formal application for recusal was filed and a Ruling dated 18/5/2023 was delivered in respect of the recusal application. Thereafter the matter was to proceed for Defence hearing and it was adjourned on the instance of the Defendant on 13/6/2023, 5/10/2023. 19/10/2023. 15/11/2023, 11/12/2023, 4/2/2024. 6/5/2024, 6/6/2024 and proceeded on 10/7/2024, where DW1 testified together with DW2 and DW3 without Counsel and mater adjourned to 25/9/2024. When Mr. Bittok Counsel after coming on record for the Defendant filed an application, and sought to recall DW1, DW2 and DW3 to which the Plaintiff’s Advocates conceded to and the matter slated for recall of the Defendants witnesses initially on 7/11/2024 it adjourned today 21/11/2024.
2. Today 21/11/2024, the Defendants Counsels seek to re-open the Plaintiff’s case so as to cross – examine the Plaintiff who was already cross – examined by the Defendant’s Counsel then on record.
3. Mr. Omboto opposes the same, and submits that since the Defendant and his witnesses testified in any event, their case should be closed as the Defendants seeks to have a second bite at the Cherry and has delayed the matter.
4. I have considered the submissions, the Court is being asked to exercise discretion so as to recall the Plaintiff for cross – examination by a second Advocate, already having been cross – examined by another Advocate almost 2 years ago.
5. It would be unfair to the Plaintiff if he were to be recalled having already closed his case and having been cross- examined, in the first place, and given the conduct of the Defendant who has frustrated the hearing having adjourned the matter so many times, I decline to exercise discretion in his favour.
6. The Court notes that the Defendant and his two witnesses already testified and sees no basis for their recalling, in any event.
7. As this Court is on transfer the matter shall be mentioned on 14/01/2025 to take a hearing date before the incoming Court, which shall be at liberty to decide and/or give directions as to whether to hear the Defence witnesses afresh or close their case.
Ruling Delivered and Dated at Kapsabet this 21st Day of November, 2024.
In the presence of;
1. Mr. Bittok for the Defendant
2. Mr. Omboto for the Plaintiff