[2012] KEHC 4527 (KLR)
The court held that the decision to call an expert witness is discretionary and should be exercised judiciously. Although the Constitution and statutory provisions empower the court to seek expert assistance, the judge determined that the current stage of proceedings did not warrant such intervention. The court...
Source-derived case information.
- Citation
- [2012] KEHC 4527 (KLR)
- Parties
- Applicant: Beta Healthcare International Limited; Respondent: Commissioner of Customs Services; Respondent: Kenya Revenue Authority; Respondent: The Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case 125 of 2010
- Procedural Posture
- Miscellaneous Civil Case / Ruling on Application to Call Expert Witness
- Outcome
- application to call expert witness rejected
- Judges
- DAS Majanja
- Legal Topics
- Expert Evidence, Tariff Classification, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beta Healthcare International Limited
Applicant
Commissioner of Customs Services
Respondent
Kenya Revenue Authority
Respondent
The Attorney General
Respondent
Procedural Posture
Miscellaneous Civil Case / Ruling on Application to Call Expert Witness
Legal Issues
- 1 Whether the court should exercise its discretion to call an expert witness in matters of tax classification at this stage of proceedings.
- 2 Whether the absence of rules by the Chief Justice under Article 22(3)(a) precludes the court from calling an expert.
- 3 Whether calling an expert at this stage would assist or prejudice the proceedings.
Ratio Decidendi
The court held that the decision to call an expert witness is discretionary and should be exercised judiciously. Although the Constitution and statutory provisions empower the court to seek expert assistance, the judge determined that the current stage of proceedings did not warrant such intervention. The court found that calling an expert at this point would likely obscure the issues and unnecessarily prolong the matter, especially since the statutory authority had already made a determination on tariff classification. The application to call an expert was therefore rejected, with the court reserving the right to revisit the issue should the need arise later in the proceedings.
Court Disposition
application to call expert witness rejected
Orders
- The application to call Mr Geoffrey M’Mwenda Nchooro as an expert is rejected.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
MISCELLANEOUS CIVIL CASE 125 OF 2010
BETWEEN
BETA HEALTHCARE
INTERNATIONAL LIMITED..............................................PETITIONER
AND
COMMISSIONER OF CUSTOMS SERVICES.....1ST RESPONDENT
KENYA REVENUE AUTHORITY ..........................2ND RESPONDENT
THE ATTORNEY GENERAL ..................................3RD RESPONDENT
RULING
1. Mr Ochieng’ Oduol, advocate for the petitioner has applied to call Mr Geoffrey M’Mwenda Nchooro as an expert in matters of tax classification. He submits that the expert will assist the court determine several issues regarding tariff classification. In his view, this is necessary because the parties have filed several contradictory affidavits and an expert will clarify some of the issues. He maintained that the respondent will not be prejudiced as they will have an opportunity to examine the expert.
2. The application is opposed by Mr Ontweka on the basis that the statutory authority which resolves matters of tariff classification has made a decision and the court ought to take this into account. This position is supported by Mr Mutinda, counsel representing the Attorney General.
3. Whether or not to call an expert is a matter entirely within the court’s discretion. Article 22(3)(a) empowers the Chief Justice to make rules that permit the court to call upon any individual with particular expertise to appear as a friend of the Court. Although the Chief Justice is yet to make rules, this Court has power as part of its jurisdictions under section 84 of the former Constitution to call such a person to assist the court where necessary.
4. The matter before the court raises several contested issues. It is the duty of the Court to determine factual and legal issues however difficult or technical. I have not appraised myself entirely of the various contentions and I am of the view that if I call upon an expert at this stage, it will only serve to obscure the matters and lengthen the proceedings.
5. It must be remembered that the expert, at least as I understood from the petitioner, is intended to assist the court. I have not reached a stage of these proceedings where I can state that I now require an expert to assist me in the matter.
6. I will therefore not accede to the application at this stage. Should I feel that more light needs to be shed on the matter, I shall give the necessary directions at the appropriate stage.
7. The net result of my decision is that the application to call Mr Geoffrey M’Mwenda Nchooro as an expert is rejected.
DATED and DELIVERED at NAIROBI this 22nd day of May 2012.
D.S. MAJANJA
JUDGE
Mr Ochieng’ Oduol instructed by Ochieng’ Onyango Kibet and Ohaga Advocates for the petitioner.
Mr Ontweka instructed by the Kenya Revenue Authority for the 2nd and 3rd respondents.
Mr Mutinda, Litigation Counsel, instructed by the State Law Office for the 3rd respondent.