Firm 23B Class of 2017 KSL
1.0 INTRODUCTION
This paper seeks to address objections and precisely preliminary objections (herein afterwards referred to as a PO) and trial objections. In this quest therefore, the following shall be discussed; definition, the statutory basis of objections in Kenya, purpose and functions of objections, types of objections, preliminary and trial objections, grounds for raising a PO and trial objections, what to consider before making objections, when and how to make objections, arguing objections, ruling on the objection and ethics to be observed when raising objections.
1.1 Definition of an objection
An objection is a formal statement opposing something that occurred or is about to occur in court and seeking the judges immediate ruling on the point and the party objecting must state the basis for the objection to preserve right to appeal an adverse ruling.[1] It is also the means by which evidentiary disputes are raised and resolved.[2] It is a motion asking the court to exclude the evidence of the adverse party. The party raising the objection argues that the tendered evidence is irrelevant and hence inadmissible in evidence.[3]
Objections can be raised as to form or content. Whereas content objections relate to the substantive evidence, form objections deal with the procedure of the trial.[4]
1.3 Statutory Basis
The legal framework governing objections in Kenya is derived from a number of statutes. They include;
The Constitution of Kenya[5] this is the supreme law of the land and Article 2 provides for its supremacy by providing that in case of inconsistency between the constitution and any other written law, the constitution shall suffice.
The Constitution[6] sets out the rights of an accused person including the right to adduce[7] and to challenge evidence and the right not to be tried for an offence that the accused had previously been tried for and either convicted or acquitted.[8]
The Evidence Act[9] gives guidance on admissibility of facts and evidence.
1.3.1 Criminal cases
The Criminal Procedure Code[10] under Section 134-137 provides that an accused may raise an objection where the charge is defective. Defectiveness of a charge arises where there is failure to disclose an offence, particulars and where there is duplicity of charges. Additionally, Section 138 of the same allows an objection to be made by the accused in case of autrefois acquit or autrefois convict.[11]
1.3.2 Civil cases
Pursuant to Order 51 Rule 14 (1) of the Civil Procedure Rules[12], a party wishing to oppose an application is required to file any or a combination of the following documents; a notice of preliminary objection and/or a replying affidavit and/or a statement of grounds of opposition.
Other provisions which govern the making of objections include but not limited to Section 7 and 16[13], Order 18 Rule 6[14].
1.2 Types of objections
There are three types of objections; Preliminary objections, trial objections and post-trial objections. This paper shall however delve into the first two types of objections. A detailed discussion on post trial objections is found in an annexure marked B23/1.
2.0 PURPOSE AND FUNCTIONS OF OBJECTIONS
Objections serve to ensure that parties prosecute and defend their cases in tandem with the procedural and substantive law. The following are the main functions of objections;
Trial objections help to preclude inadmissible evidence from being presented to court[15], enable witnesses to give evidence without intimidation or harassment by opposing advocates and help to predicate error on courts evidentiary ruling.
Preliminary objections on the other hand help prevent court from entertaining a matter that it ought not to or a matter that is otherwise a nullity and are also useful in striking out defective pleadings.
3.0 PRELIMINARY OBJECTIONS
3.1 Definition
Paul Bergman[16] defines a preliminary objection as a motion asking the judge to exclude evidence that the adverse party seeks to rely on before the proceedings begin. As such, a party urges the court not to entertain the matter. In essence, a preliminary objection is raised before trial and before the merit of a case is determined. The court does not take into account the validity of the claims raised in the suit.
In Kenya, the leading case involving objections was Mukisa Biscuit Company – vs- West End Distributors Limited[17] where Sir Charles Newbold P observed that ,“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. If the point of law raised is argued sufficiently, it may dispose of a suit. [18] A similar decision was held in Avtar singh Bhamra & Another –vs- Oriental commercial Bank[19] where the High Court of Kenya at Kisumu stated, “a Preliminary Objection must stem or germinate from the pleadings filed by the parties and must be based on pure points of law with no facts to be ascertained.”Bottom of Form
3.2 The Nature of Preliminary Objections
The locus classicus case of Mukisa Biscuit Company – vs- West End Distributors Limited[20] brings out the nature of a preliminary objection as discussed hereunder.
Firstly, a PO is raised on a point of law. A point of law is derived from the sources of law in Kenya.[21] This means that a party cannot raise it claiming to question the truthfulness of a fact in a case. A PO raised on such grounds is from the face of it a breach of rules of procedure and will not be entertained by courts of law.
Continually, a PO must be raised on the assumption that all facts pleaded by the adverse party are correct. It should not raise substantive issues from the pleadings which must be determined by court upon perusal of evidence as was held in Natin Properties Limited –vs- Jaggit Singh Kalsi & Another[22]. No preliminary objection can be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
Finally, a PO should be capable of disposing the matter initially without the court having to resort to ascertaining the facts from elsewhere apart from looking at the pleadings alone. Since a PO is raised on points of law only, this suggests that the point of law raised should be so vital in the case as to render the suit dismissed if allowed. In essence, this implies that a PO once raised can lead to the court dismissing a suit without determining the merits of the case.
3.3 GROUNDS FOR RAISING A PRELIMINARY OBJECTION
The High Court of Kenya in the recent case of John Mundia Njoroge & 9 others –vs- Cecilia Muthoni Njoroge & Another[23], Mativo J. listed six grounds upon which a PO may be raised which include;
3.3.1 Lack of Jurisdiction
“Jurisdiction is everything. Without it, a court has no power to make one more step. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” This were the words of Nyarangi JA in the case of Owners of motor vessel |”Lilian S” –vs- Caltex Oil Kenya.[24]
Jurisdiction flows from the law. Jurisdictional objections may be either concerning territorial or pecuniary jurisdiction.[25] Currently, the Constitution[26], the Magistrates Act[27] and many judicial decisions have discussed the aspect of the jurisdiction of courts.
Since jurisdiction is regarded as a threshold issue and is a lifeline for continuing any proceedings, objections on this ground should be dealt with at the earliest point possible before any step in the proceeding as was held in Beatrice Chorotich Koskei & Another –vs- Olenguruone Land Dispute Tribunal & 2 others[28]. Consequently, pursuant to Section 16 of the Civil Procedure Act[29], no objection as to the place of suing shall be allowed on appeal unless it was raised in the court of first instance and there has been a consequent failure of justice. Where there is no jurisdiction the entire proceeding will be regarded a nullity no matter how well it was conducted. This was held in Local Authorities Provident Fund –vs- Joseph Njogu Gathu & Another.[30] Similarly, in Mary Wambui Munene –vs- Peter Gichuki Kingara and Six Others[31], the Supreme Court of Kenya Court held that the question of jurisdiction is a “pure question of law,” and should be resolved on a priority basis.
3.3.2 Failure of a pleading to conform to law or rule/ institution of matters contrary to the statute of limitations of actions Act
Laws and specifically the Civil Procedure Rules of 2010, the Criminal Procedure Code[32] and the Administration and Probate Rules[33] are in place to aid parties to a suit. The rules dictate the trial procedure in terms of the pleadings to be filed and the timeline to be adhered to. A PO will be raised when a pleading offends the rules of procedure for instance where a Notice of Motion is used instead of Chamber Summons or where a suit is commenced by way of a plaint instead of an originating summons.
In criminal cases, a PO may be raised pursuant to Section 134-137[34] in cases of defectiveness of charge.[35]
The Statute of Limitations of Actions Act[36] sets out the timeline by which a suit should be filed in court. For instance; 6 years for contracts, 3 years for personal injuries, 12 years for actions to recover land and 1 years for defamation cases. A defendant in such matters may raise a PO where a suit has been filed out of time.[37]In such matters, a party to the suit will only be allowed to cross-examine during the trial in challenging the granting of the leave or the legality of filing a suit without the leave of the court as was held in Oruta & Another –vs- Nyamato[38]. There is no time limitation when it comes to criminal matters.
Courts have however been reluctant in dismissing a case on such grounds due to Article 159(2) (d) of the Constitution,[39]which requires judicial officers to administer justice without undue regard to procedural technicalities. Additionally, it is imperative to note that although courts have discretion of allowing parties to amend their pleadings to enable substantive issues of the case be determined, Birechi J. in Quick Enterprises Ltd –vs- Kenya Railways Corporation[40] held that a plaint that is hopelessly bad that no life can be breathed into it may be struck out.
3.3.3 Insufficient specificity in a pleading
A party may file a preliminary objection on grounds that the pleadings served upon him/her contain insufficient specificity. Insufficient specificity come about when the pleadings fail to clearly set forth specific facts showing that there is a genuine issue for trial. This may lead to lack of there being a genuine cause of action. Consequently, where a PO on this ground is allowed, it leads to striking out of a suit.
3.3.4 Legal insufficiency of a pleading
Parties to a suit are required to plead their cases clearly and in accordance to the requirements under the Rules of Procedure. In doing so, one must ensure that the material facts be pleaded to support any cause of action, and that any allegation not denied in a statement of defence are deemed to be admitted, claims for damages must specify the amount claimed for each claimant.[41]
3.3.5 Lack of Capacity to sue
Once one has identified the competent jurisdiction to determine a matter, he/she must consider the correct parties to a suit. Locus standi affects the jurisdiction because it can stop a court from hearing a case. In civil matters, attention is drawn to Order 1 on parties to a suit. Order 32 is equally important since it discusses the legal capacity of minors and persons of unsound mind. In criminal matters, the issue is simple since it is the government that prosecutes all criminal matters.
3.3.6 Pendency of a prior action
This encompasses two principles namely; double jeopardy and res judicata.
Double jeopardy allows a party that had been tried and either convicted or acquitted to raise a preliminary objection to avoid being tried on the same charge and similar facts. It originates from the legal maxim “nemo debet bis vexari pro ura et eadem causa” a latin phrase which means “no-one shall be tried or punished twice in regards to the same event”. Article 50(2) of the Constitution provides for the rights of an accused person, which includes not to be tried for an offence in respect of an act or omission for which the person has previously been acquitted of convicted.[42] This position was affirmed in the case of Nicholas Kipsigei Ngetich & 6 others v Republic[43].
Section 7 of the Civil Procedure Act enshrines the doctrine of res judicata by proving that, “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties”. From the foregoing therefore, a party can raise a preliminary objection where same facts, parties, cause of action exists. However, where a lower court lacking jurisdiction dismisses a case instead of striking it out and the aggrieved party appeals, the respondent in such a matter cannot claim to invoke the doctrine of res judicata. This was the holding in the case of Enock Kirao Muhanji v Hamid Abdalla Mbarak [44].
A preliminary objection can be raised by an accused to declare the trial a nullity on the grounds that his/her constitutional rights have been violated. This was the case in Republic –vs- William Chesis Kipkore[45].
4.0 TRIAL OBJECTIONS
4.1 Definition
A trial objection is a formal protest by a party to a suit raised during a trial whose main purpose is to attack the evidence tendered. Unlike a PO, a trial objection is raised on the substantive issues. It is very hard for a non-legal scholar to know when to raise a trial objection.[46] Instances where trial objections may be raised are provided for in the Evidence Act[47] .
A trial objection may be raised against an advocate’s questions, witness testimony, introduction and use of exhibits, an advocate’s demeanor as well as the conduct of the presiding judge. It may also be raised against a judge’s ruling in order to preserve a right to appeal especially in cases where there is a likelihood of prejudice or bias against the objector as was illustrated in Ndirangu V Republic.[48]
4.2 CATEGORIES OF TRIAL OBJECTIONS
There are two categories of trial objections namely; objections to form of questions and objections to the evidence offered.
4.2.1 Objections to Form of Questions
In practice, an advocate should always be clear, concise and audible when addressing the court. These three qualities if observed to the letter excludes the chance of trial objections to the form of questions from being raised. Examples of questions to form which may lead to this objection include but are not limited to;
General and ambiguous questions, a general question leads to ambiguity hence creating misunderstanding and subsequently attracting the wrong answers from a witness. Argumentative and compound questions[49], questions which assume facts not in evidence[50], leading questions[51], repetitive questions, questions that misquote or misstates witness’ evidence[52], questions which call for a narrative answer especially where the narrative is irrelevant, questions which call for speculation as this leads witnesses to guessing the answer or giving their opinion as well as indecent and scandalous questions. The court will forbid any questions that may prove to be scandalous or indecent unless they relate to facts in issue or to matters that determine whether the facts in issue existed.[53]
4.2.2 Objections to Offered Evidence
Evidence which ought not to be adduced should be objected. The following are the instance where a trial objection may raised;
Generally, oral evidence must always be direct and hearsay is inadmissible[54]. The Evidence Act provides exceptions[55] to this rule hence an advocate should always object to questions which invite hearsay and which do not fall under the exceptions. Irrelevant and immaterial questions which do not relate to the facts in issue should also be objected. Additionally, the Evidence Act allows courts to call in expert witnesses only to give expert opinion and where a non-expert gives opinion evidence, a trial objection should be raised and such evidence will be inadmissible.[56]
Whereas the law allows an advocate to ask a question that impeaches on the accuracy, veracity or credibility of a witness[57], the courts may forbid annoying, indecent, scandalous questions or those that lead to improper impeachment of character[58].
The general rule is that all documents must be proved by primary evidence[59] unless otherwise provided for in the Evidence Act. An advocate may therefore object to inclusion of secondary evidence where not allowed by the Act. Further, written agreements will always suffice over oral evidence hence an advocate should object where oral evidence contradicting written evidence is preferred.[60] The same position was held in Prudential Assurance Company Of Kenya Limited –vs- Sukhwinder Singh Jutley & Another[61].
An advocate is also to object to illegally obtained evidence being adduced in court, adducing evidence that may threaten state security as stated in the Official Secrets Act[62], introduction of character evidence when it has not been brought in issue however, the accused may bring his or her character in issue[63], re-examination of matters not raised in cross-examination[64] and in instances of badgering where the opposing advocate tries to provoke a response from a witness.[65]
Where a witness tries to evade a question, an objection will lead to the court compelling the said witness to give an answer. Additionally, where a witness continues to answer a question by stating things irrelevant to the case, an objection will help to control such a witness.
Adducing information which is privileged is not allowed in law and such evidence is inadmissible. Privilege exists between an advocate and a client, a doctor and a patient and among married persons. These persons have an obligation not to divulge any information acquired in the subsistence of these relations and cannot whatsoever be compelled to testify against each other.
There are however exceptions to this rule. In advocate-client privilege exception applies where there is client’s express consent, where an advocate learns that the client intends to commit a crime or where he has committed a crime since the commencement of their relationship[66]. This was illustrated in H.F. Fire Africa –vs- A.M.R. Gharieb[67] unless with the client’s express consent, or where the communication was made in furtherance of an illegal purpose or where a crime has been committed[68]. Exceptions applicable in spousal privilege include; where there is a suit between the spouses, where the suit is in relation to an offence against morality or the suit relates to their children and where one of the party is charged with bigamy. The other privileges and in which if breached ought to be objected include, privilege of official communication.[69]privilege for identity of informer and privilege against self-incrimination[70].
5.0 MAKING OF OBJECTIONS
“The improper raising of points by way of Preliminary Objection does nothing but unnecessarily increase costs and occasions confuse the issues. This improper practice should stop”.[71]
Objections should be timely and specific meaning they should be made before the inadmissible evidence is produced and should specifically be credited to a particular issue, statute or rule of evidence. It’s imperative to note that”
A party raising a preliminary objection must state the particulars of the statutory provision upon which they rely on in raising the said objection as was held in Kashbhai –vs- Sempagawa [72].
Under Order 51 rule 14[73] a party opposing an application is required to file and serve the other party with a notice of preliminary objection. Sufficient notice of the intention to raise a preliminary objection must be given to the adverse party[74] as was emphasized in Hudson Liase Walibwa –vs- AG[75]. However, in civil cases a defence containing a paragraph communicating the intention of the party to raise an objection and service of an application to strike out a suit or pleading preliminarily are deemed to be sufficient notice. This notice is further not necessary in matters before the court of appeal since such matters are prosecuted in accordance with the rules of the court of appeal.
Since trial objections are made during a trial, giving notice is impractical. However, a party making an objection needs to consider and apply the principles of professional ethics and conduct. An advocate should say ‘objection’ as you raise up, then proceed to give your ground for the objection. In some instances, upon standing or saying objection, you may wait for the court to allow you to proceed after which you will give your ground. Usually, when the opponent objects, the advocate should just pause, think and respond then wait for the court’s ruling.
The court in responding to objections will either overrule meaning evidence is properly admitted and trial can proceed, or sustain which means that an advocate must rephrase the question or address the issue with the evidence.
5.1 Qualities of a good trial advocate in making objections
To make a timely and accurate objection, an advocate should possess the following qualities of a good trial lawyer; alertness, confidence and courage, preparedness, professionalism, sound judgment, clarity of thought and language, ability to think on your feet among others.
The aforementioned qualities dictate that an advocate should observe the rules of practice, evidence and ethics and conduct to make well-founded objections. It is only when one is alert to ongoing proceedings that one will be able to make and respond to objections correctly. Professionalism ensures that objections are not triggered by malice as well as ensuring that parties do not raise emotions or go personal when raising and responding to objections.
5.1.2 Issues to consider in deciding whether or not to object
An advocate should always remember that an objection may have a detrimental effect on their case and it is possible to object to a witness whose evidence may advance you case. Therefore, before one decides whether or not to object, they should consider the following;
a) Relevancy: as already discussed, only relevant facts are admissible unless otherwise specifically provided. In essence therefore one should be object to irrelevant and immaterial facts. [76]
b) Reliability: Secondary evidence such as hearsay is generally excluded as its not as reliable as first hand information. Section 63 of the Evidence Act gives guidance on this issue as it defines clearly what direct evidence.
c) The Concept of illegality: For evidence to be adduced and admitted in evidence, it must not have been obtained through illegal means. Confessions and admissions made due to torture for instance will be excluded by the court.[77]
6.0 BIBLIOGRAPHY
6.1 BOOKS AND ARTICLES
· Evans, K. (1995). Advocacy in Court: A Beginner's Guide. California: Blackstone.
· George, R. P. (2008). Law and Moral Purpose. 4.
· International Bridges to Justice Defence . (2010, November).
· Lubet, S. (2004). Modern trial Advocacy . Oxford University Press.
· Turnbill-Harris, S. L. (2001). Mock Trials, Preparing and winning cases. 167.
6.2 STATUTES
· Constitution of Kenya, 2010
· Civil Procedure Act, Cap 21 Laws of Kenya
· Civil Procedure Rules of 2010
· Criminal Procedure Code, Cap 75 Laws of Kenya
· Statutes of Limitations of Actions Act Cap 22, Laws of Kenya.
· The Magistrates Act, No. 26 of 2015.
· The Judicature Act, Cap 8, Laws of Kenya.
· The Evidence Act, Cap 80, Laws of Kenya.
· The Official Secret Act, Cap 187, Laws of Kenya.
· Administration and Probate Rules, Cap 160 Laws of Kenya.
6.3 CASE LAWS
· Mukisa Biscuit Company – vs- West End Distributors Limited (1969) EA. 696
· Avtar singh Bhamra & Another –vs- Oriental commercial Bank (Civil suit No. 53 of 2004)
· John Mundia Njoroge & 9 others –vs- Cecilia Muthoni Njoroge & Another [2016] eKLR, Succ. Cause No. 127 of 1999
· Natin Properties Limited –vs- Jaggit Singh Kalsi & Another, Civil appeal no. 132 of 1989.
· Quick Enterprises Ltd –vs- Kenya Railways Corporation, HCC no. 22 of 1999.
· Owners of motor vessel ”Lilian S” –vs- Caltex Oil Kenya (1989) KLR 1
· Kashbhai –vs- Sempagawa (1976) EA 16.
· Local Authorities Provident Fund v Joseph Njogu Gathu & another [2016] eKLR C.A no. 66 of 2009
· Mary Wambui Munene v. Peter Gichuki Kingara and Six Others, Sup. Ct. Petition No. 7 of 2013; [2014] eKLR
· Oruta & Another –vs- Nyamato[1988]eKLR C.A No. 96 of 1984
· Nicholas Kipsigei Ngetich & 6 others v Republic[2016] eKLR, Crim. Case No. 123 of 2010
· Enock Kirao Muhanji v Hamid Abdalla Mbarak[2013] eKLR ELC No. 58 of 2012
· Avtar Singh Bhamra & Another –Vs- Oriental Commercial Bank – Civil Suit No. 53 of 2004
· Enock Kirao Muhanji v Hamid Abdalla Mbarak [2013] eKLR
· Raila Amollo Odinga vs IEBC Petition No. 3 of 2013
· Republic V William Chesir Kipkore [2008] Eklr
· Chorotich Koskei & Another –vs- Olenguruone Land Dispute Tribunal & 2 others. Misc App. No. 861 of 2007
· Prudential Assurance Company Of Kenya Limited V. Sukhwinder Singh Jutley And Another CIVIL APPEAL 23 OF 2005
· H.F. Fire Africa –vs- A.M.R. Gharieb
· Janet Syokau Kaswii v Kathonzweni Financial Service Association [2014] eKLR
6.4 ONLINE SOURCES
· Chege Kibathi & Company advocates law learners online library. Retrieved from http://www.ckadvocates.co.ke
· International bridges to justice defence. (2010, November 3). objections at trial. Retrieved 11 27, 2012, from wikipedia: http://wiki.ibj.org
· Odipo, L. (2010, June 03). Trial before the High Court. Retrieved November 27, 2012, from kenya law resource center: www.kenyalawresourcecenter.blogspot.com
· The free legal dictionary. (2011, October 11). objections. Retrieved November 27, 2012, from The free dictionary: http://dictionary.thefreedictionary .com
[1] Blacks Law Dictionary, 8th Edition.
[2]Steve Lubet in “Modern Trial Advocacy”.
[3] This was stated by David Ross QC in page 113 of “Advocacy” 2nd Edition
[4] Steve Lubet & Jill Turnbill-Harris, Mock Trials, Preparing and winning your case 9,167( Nat’l Institute for Trial Advocacy )(2001)
[5] 2010
[6] Ibid note 4
[7] Article 50(2) (K)
[8] Article 50 (2) (O)
[9] Cap 80 of the Laws of Kenya
[10] Cap 75 of the Laws of Kenya
[11] These are both defences raised in a criminal proceeding. They prohibit a parson from being prosecuted twice for an offence which they had already been charged for and either acquitted or convicted respectively.
[12] 2010
[13] Civil Procedure Act, Cap 21 Laws of Kenya. It provides for res judicata by prohibiting courts to entertain matters already determined as well as prohibits objections as to the place of suing on appeal unless the objection was made in the court of first instance and there was failure of justice respectively.
[14] Civil Procedure Rules of 2010 require the court where it allows an objection to record the question objected to, the answer to the question, the objection and the name of the party making the said objection.
[15] The Supreme Court of Kenya in petition no. 5 of 213 Raila Amolo Odinga vs IEBC in precluding inadmissible evidence refused to admit the 900 pages affidavit by the Applicant.
[16] A New York City defence lawyer with more than 40 years’ experience.
[17] (1969) EA.696 at page 701
[18] This was retaliated in a Tanzanian Court of Appeal in the case of Abdalla Rashid Abdallah –vs- Sulubu Kidogo Amour & Anor. C.A No. 94 of 2006.
[19] Civil suit No. 53 of 2004.
[20] Ibid note 17
[21] Section 3 of the Judicature Act, Cap 8 of the Laws of Kenya. The sources of law include the constitution, all written laws, delegated legislations, English statutes of general applications, common law, equity, judicial predents and Africa customary law in as far as it is not repugnant to justice and morality and inconsistent with the any written law.
[22] C.A, Civil Appeal No. 132 of 1989 (Gicheru, Kwach & Shah JJ.A)
[23] [2016] Eklr, Succession cause no. 127 of 1999
[24] (1989) KLR 1
[25] Objections on ground of territorial jurisdiction is where the court where the suit is instituted lacks power to try a case in place where the case of action arose while in pecuniary jurisdiction is where the value of the matter in monetary terms is higher the upper limit that can be tried by the court.
[26] Ibid note 4
[27] No. 26 of 2015.
[28] Misc. App. No. 861 of 2007
[29] ibid
[30] [2016] eKLR C.A. No. 66 of 2009.
[31] [2014] eKLR Petition No. 7 of 2013 at paragraph 68 and 69.
[32] Ibid note 10
[33] Of 1980, Cap 160, laws of Kenya
[34] Ibid note 10
[35] See 1.3.1 above
[36] Cap 22, laws of Kenya.
[37] A party should not file a suit out of time without the leave of the court. The court exercises its discretionary powers in allowing or disallowing a suit to be filed out of time. Courts are reluctant to aid parties who sleep on their rights.
[38] [1988] eKLR, Civil Appeal No. 96 of 1984
[39] Ibid note 5
[40] Kisumu HCCC No. 22 of 1999
[41] This was stated at Lexis Practice Advisor LAw by Azin Samani and Oatley Vigmond; Personal injury lawyers LLP.
[42] Section 138 of the civil Procedure Code, Cap 75, Laws of Kenya envisages autrefois acquit and convict which is a similar defence in criminal cases as that of double jeopardy.
[43] [2016]eKLR Criminal case No. 123 of 2010
[44] [2013]eKLR ELC no. 58 of 2012
[45] [2008]eKLR, Criminal Case no. 27 of 2007
[46] As a matter of practice, most parties to a suit never raise objections during trial as they hardly know the rules.
[47] Ibid note 9
[48] (1959) E.A 875
[49] This where an advocate joins questions using conjunctions “and” or “or”
[50] Such questions are objected to as they tend to imply that an offence was actually committed when the said offence is yet to be proved. A good example is where an advocate in an assault case asks the accused, “when did you slap the complainant”?
[51] This is a question which seems to suggest the answer to the witness. It should never be entertained in examination-in-chief. They should however be used in cross-examination as per the ten commandments cross examination by Ian Morley. Section 149 ,150, 151 of the Evidence Act, Cap 80 deal with this.
[52] This may occur where an advocate implores ‘parroting’ and instead of restates exactly what witness states, they add a dissenting statement from that of the witness before asking a question.
[53] Section 159 Evidence Act Cap 80 Laws of Kenya
[54] See section 63 Evidence Act cap 80 Laws of Kenya
[55]Such as in dying declarations and expert opinions.
[56] See section 48 of the Evidence Act Cap 80 Laws of Kenya
[57] See section 154 of the Evidence Act cap 80
[58] See section 157 &159 of the Evidence Act Cap 80
[59] See section 67 of the Evidence Act Cap 80.
[60] See section 98 of the Evidence Act Cap 80 provides for inadmissible parole evidence.
[61] Civil Appeal No. 23 of 2005
[62] Cap 187 Laws of Kenya.
[63] See section 55-57 of the Evidence Act Laws of Kenya.
[64] This brings in the aspect of unfairness and it is clear that new evidence cannot be introduced at this stage of a trial.
[65] See section 160 of the evidence Act Laws of Kenya.
[66] Section 134 (1) (a) (b) of the Evidence Act, Cap 80, Laws of Kenya.
[67] (2005) e KLR this was an application to have Saleh El-Din an advocate and his firm disqualified from representing the plaintiff on the grounds that they were potential witness in the case and there existed a conflict of interest advocate opposed the application on grounds inter alia that he could not be compelled to testify as a witness as this would be tantamount to betraying the confidentiality he owes to his clients, the court dismissed the application and observed section 134.
[68] See section 134 and 142 of the Evidence Act
[69] See section 132 of the Evidence Act
[70] See Section 127 of the Evidence Act
[71] Njagi Marete J in Janet Syokau Kaswii –vs- Kathonzweni Financial Services Association [2014]eKLR
[72] (1976) E.A 16
[73] Ibid note 14
[74] Order 51 Rule 14 of the civil Procedure Rules
[75] NBI HCC No. 2714 of 1987
[76] Section 5-16 of the evidence Act gives a guide on relevance and admissibility of a fact in issue.
[77] Section 25A and 57 of the Evidence Act
How do you respond to a preliminary objection
ReplyDeleteA Replying Affidavit.
Delete