Please Wait. Searching ...
|Case Number:||Civil Case 5425 of 1992|
|Parties:||Ann Wanjunu v Mwihaki Waruiru,Land Registrar Kiambu & Nyakinyua Investments Ltd|
|Date Delivered:||23 Jun 2005|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||John Luka Osiemo|
|Citation:||Ann Wanjunu v Mwihaki Waruiru & 2 others  eKLR|
[RULING]- Land - Civil Procedure and Practice - Whether Civil Procedure will allow production of a document which does not form part of the documents exchanged by parties - Should procedural technicalities be allowed to suit out a part from justice - Order XV Rule 1 Civil Procedure Rules - Section 3A of the Civil Procedure Act.
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
Civil Case 5425 of 1992
MWIHAKI WARUIRU………………………….……1ST DEFENDANT
LAND REGISTRAR KIAMBU………………………2ND DEFENDANT
NYAKINYUA INVESTMENTS LTD……………….3RD DEFENDANT
The dispute involves land which was purchased by the 3rd defendant, subdivided and allocated to its shareholders. The parcels are claiming the same premises LR NO. RUIRU/RUIRU/EAST BLOCK 2/4785. The plaintiff gave evidence, called her witness and closed her case. The defendant gave her evidence and called 2 witnesses.
Counsel for the defendant wanted DW3 NDUNTA NDIRANGU to produce the register of members of the 3rd defendant NYAKINYUA INVESTMENT LTD who for some reason had abandoned the suit.
This was objected to by counsel for the plaintiff who submitted that
the said register was not one of the documents in the defendants list of documents and the plaintiff having closed her case, she will be prejudiced. Though counsel for the defendant conceded that the said register was not intended in the defendants’ list of documents, he submits that the same was not in the custody of the defendant. I agree with counsel for the plaintiff that out rules of Civil Procedure do
not allow production of a document which does not form part of the documents exchanged by parties and having concluded closed the plaintiffs’ evidence, the production of that document will prejudice his client.
But should procedural technicalities be allowed to suit out a part from justice? It is a cardinal principle that procedural technicalities should not be used as a vehicle to promote injustice.
I agree with counsel for the defendant that the said register was not in the custody of the defendant but that notwithstanding, he ought to have involved the provisions of Order XV Rule 1 which provides:-
“At any time after the suit is instituted the parties may
obtain on application to the court summons to persons
whose attendance is required ether to give evidence or to
But this he did not do. Rules of procedure are not there for the sake of it. The should be complied with. However the courts of law are there to so that justice is done to litigants.
In the event that technicalities are likely to occasion injustice, then Section 3A of the Civil Procedure Act comes in to rescue. It provides.
“Nothing in this Act shall limit or otherwise affect the
inherent power of the court to make such orders as may
be necessary for the ends of justice. Or to prevent abuse of the process of the court.”
I invoke this provision for the end of justice and order that the Secretary of Nyakunyua Investments Ltd , the 3rd defendant herein who have abandoned these proceedings and who have in their custody the company documents do appear and produce any relevant documents to assist this court to arrive at a just decision and he will be available for cross examination by both counsel for the plaintiff and the defendants. Those are the orders of this court.
Dated this 23rd day of June 2005.
The matter stood over to 29th June 2005 for mention for directions. Secretary –
Nyakinyua Investments to be summoned.