[2022] KEHC 10594 (KLR)
The court held that while the Civil Procedure Rules require the filing and exchange of witness statements to prevent trial by ambush and facilitate expeditious disposal of suits, the court retains discretion to allow oral testimony in the absence of a written statement. However, such testimony is strictly limited to...
Source-derived case information.
- Citation
- [2022] KEHC 10594 (KLR)
- Parties
- Plaintiff: Elizabeth Ambale Amisi; Defendant: Siaya County Referral Hospital; Defendant: Dr. Allan
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Civil Case 5 of 2019
- Procedural Posture
- Civil Case / Ruling on Oral Application to Testify Without Written Statement
- Outcome
- Plaintiff granted leave to testify orally, subject to limitations.
- Judges
- RE Aburili
- Legal Topics
- Witness Statements, Oral Testimony, Trial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Ambale Amisi
Plaintiff
Siaya County Referral Hospital
Defendant
Dr. Allan
Defendant
Procedural Posture
Civil Case / Ruling on Oral Application to Testify Without Written Statement
Legal Issues
- 1 Whether the plaintiff can be allowed to testify without having filed a written witness statement.
- 2 Whether oral testimony may be permitted in the absence of prior disclosure to the defendants.
Ratio Decidendi
The court held that while the Civil Procedure Rules require the filing and exchange of witness statements to prevent trial by ambush and facilitate expeditious disposal of suits, the court retains discretion to allow oral testimony in the absence of a written statement. However, such testimony is strictly limited to matters already on record or within the knowledge or possession of the defendants, and no new evidence may be introduced. This approach balances the need for procedural compliance with the interests of justice, ensuring that the defendants are not prejudiced by surprise evidence while allowing the plaintiff to present her case within the constraints imposed by her non-compliance.
Court Disposition
Plaintiff granted leave to testify orally, subject to limitations.
Orders
- Plaintiff is granted leave to testify orally.
- No new matter or evidence not already on record or within the knowledge or possession of the defendants shall be adduced.
Full Case Text
Judgment text and source record
24 paragraphs
Amisi v Siaya County Referral Hospital & another (Civil Case 5 of 2019) [2022] KEHC 10594 (KLR) (28 June 2022) (Ruling)
Neutral citation: [2022] KEHC 10594 (KLR)
Republic of Kenya
In the High Court at Siaya
Civil Case 5 of 2019
RE Aburili, J
June 28, 2022
Between
Elizabeth Ambale Amisi
Plaintiff
and
Siaya County Referral Hospital
1st Defendant
Dr. Allan
2nd Defendant
Ruling
1. This ruling determines the oral application that the plaintiff be allowed to testify without a written statement. Order 11 rule 7(2) of the Civil Procedure Rules provides that it shall be the duty of every party and or his advocate to strictly comply with the provisions of rule 3(2) of order 11 of Civil Procedure Rules and to give such Information on the witnesses that are expected to be called and the nature of their evidence to enable the court to consider and settle the length of time which will probably be required for the hearing of the suit. The order further stipulates that:(3) Any party or his advocate who willfully facts or omits to comply with the provisions of this order shall be deemed to have violated the overriding objectives as stipulated 1A and 1B of the Act and the court may order costs against the defaulting party unless for reasons to be recorded, the court orders otherwise.
2. Under order 11 rule 4(2) of the Civil Procedure Rules, each party shall at least seven days before the date appointed for the settlement conference prepare and exchange a settlement conference brief which should include the following:(c) a final list of witness and a summary of each witness’ statement.
3. The plaintiff in this case did not file any witness statement which she could rely on as her evidence in chief. She seeks leave of court to give oral testimony on account that she does not wish to produce any document.
4. The purpose of the law in requiring, in mandatory terms, the filing of witness statements in advance and service of the same upon the adverse party is to avoid trial by ambush or the party adducing evidence which the other party has no knowledge of or time to challenge the same.
5. In addition, it is intended to aid the court to consider and settle the length of time which will probably be required for the hearing of the suit (expeditious) disposal of the suit.
6. In the absence of any witness statements filed by the plaintiff in this case, the plaintiff can testify on account that she shall not be permitted to introduce any evidence which is not within the knowledge of the defendants which no doubt limits her testimony to her own detriment. I shall therefore grant the plaintiff leave to testify orally but no new matter or evidence which is not on record already or within the knowledge or possession of the defendants shall be adduced.
7. I so order.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT SIAYA THIS 28TH DAY OF JUNE, 2022. R.E. ABURILIJUDGE