[2018] KEHC 6215 (KLR)
The court found that the statement of the new expert, Keith Mackey, was substantially identical to that of the previously identified expert, Robert S. Tucker, Jr, except for introductory remarks. The documents annexed to Mr. Mackey's statement had already been disclosed to the defence over a year prior, negating any...
Source-derived case information.
- Citation
- [2018] KEHC 6215 (KLR)
- Parties
- Plaintiff: Elizabeth Guttman; Plaintiff: Mathew Shelton; Defendant: Iitayason Neepe; Defendant: Lady Lori Kenya Limited; Defendant: Oryx Safari Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 410 of 2012
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection Regarding Introduction of Expert Witness
- Outcome
- preliminary objection dismissed; plaintiffs allowed to call expert witness
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Admissibility of Evidence, Expert Witnesses, Preliminary Objection, Late Filing of Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Guttman
Plaintiff
Mathew Shelton
Plaintiff
Iitayason Neepe
Defendant
Lady Lori Kenya Limited
Defendant
Oryx Safari Limited
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection Regarding Introduction of Expert Witness
Legal Issues
- 1 Whether the plaintiffs should be allowed to introduce a new expert witness, Keith Mackey, in place of the previously identified expert, Robert S. Tucker, Jr.
- 2 Whether the introduction of the new expert witness at this stage is prejudicial to the defendants and constitutes an unfair surprise.
- 3 Whether the documents annexed to the new expert's statement are admissible given prior disclosure.
Ratio Decidendi
The court found that the statement of the new expert, Keith Mackey, was substantially identical to that of the previously identified expert, Robert S. Tucker, Jr, except for introductory remarks. The documents annexed to Mr. Mackey's statement had already been disclosed to the defence over a year prior, negating any claim of surprise. The court held that the defence would not suffer prejudice, as they had ample opportunity to review the documents and the substance of the expert evidence had not changed. The court reiterated that the evidential value of the testimony would be determined at trial and that the defence retained the right to cross-examine the expert and call their own...
Court Disposition
preliminary objection dismissed; plaintiffs allowed to call expert witness
Orders
- The preliminary objection by the defence is dismissed.
- The plaintiffs are permitted to call Mr. Keith Mackey as an expert witness in this trial.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 410 OF 2012
ELIZABETH GUTTMAN....................................................1ST PLAINTIFF
MATHEW SHELTON..........................................................2ND PLAINTIFF
VERSUS
IITAYASON NEEPE.........................................................1ST DEFENDANT
LADY LORI KENYA LIMITED....................................2ND DEFENDANT
ORYX SAFARI LIMITED..............................................3RD DEFENDANT
RULING
The plaintiffs herein seek to introduce a witness by the name Keith Mackey said to be an expert in helicopters and aviation in place of one Robert S. Tucker, Jr earlier identified to give evidence in that regard. That move has been strenuously opposed by the defence and there is on record a notice of preliminary objection dated 4th and filed on 8th May, 2018. There is no dispute that the statement by the said Keith Mackey was filed on 4th May, 2018 and served upon the defence on the same day. Earlier on 30th April, 2018 counsel for the plaintiffs and the defendants had exchanged correspondence relating to the introduction of the said statement. The plaintiffs therefore knew that there would be objection to the introduction of this witness.
The objection by the defence is based on the fact that this witness is being introduced late in the day and it would be prejudicial for him to testify because the defendants have been taken by surprise and counsel has not had time to read, or refer the said statement to his clients and therefore will be handicapped in cross examining the witness.
On the other hand, the plaintiffs state, other than the introductory statements by the intended witness all other details are the same as those that appear in the statement of Mr. Robert Tucker earlier filed and served upon the defendants.
The plaintiffs have submitted on the reasons for non-availability of Mr. Tucker and the move to introduce Mr. Mackey as a replacement. They have also referred to the provisions of the Evidence Act, Cap 80 Laws of Kenya, Sections 48, 107 to 109 thereof.
Counsel for the defendants has alluded to several rulings by the court in the course of the trial where objections have been dismissed due to the fact that the issues raised should have been made at the pre-trial stage. That being the case, the same position should be visited upon the plaintiffs otherwise the defendants would be justified to impute bias on the part of the court.
I must observe at this stage that, any allegations of double standards or bias on the part of the court are not only unfortunate but unfounded. Let it go on record that this court shall be, as it has always been, guided by the pleadings, the evidence, the law and nothing else in making its determination.
I have gone through the statement of Mr. Robert Tucker and that of Mr. Keith Mackey. Other than the introductory statements stating the respective experience, all other details are the same word for word except paragraph 41 in the statement of Mr. Tucker which has slightly more details than that of Mr. Mackey.
In that regard therefore, one may confidently state that as relates to the cause of action as pleaded in the plaint, the defendants shall not be impaired in addressing the statement of Mr. Mackey. In addition, the two documents that have been annexed to the statement of Mr. Mackey and which have been objected to alongside his statement by the defence, are not a surprise to the defence. I say so because, in the supplementary list of documents filed by the plaintiffs on 2nd March, 2017 the two documents appear at pages 18 to 40. The defence has had these documents for over one year.
This court delivered a ruling on 30th August, 2017 relating to similar objections and held that the expert evidence would be admissible. That evidence was contained in the statement, inter alia, of Mr. Tucker. It is my assumption that the defence counsel must have taken instructions relating to Mr. Tucker’s statement. If that be the case, and considering the contents are more or less the same as those contained in the statement of Mr. Mackey, and further that the other documents in the supplementary list have been in their possession all along, I see no prejudice that shall be visited upon the defendants by allowing Mr. Mackey to testify.
I reiterate my observations in my ruling of 30th August, 2017 that it is the evidential value of the testimonies that shall be considered, and that the defendants have an opportunity to cross-examine Mr. Mackey apart from even calling witnesses in that area of expertise.
In view of the foregoing, the objection is dismissed and the plaintiffs shall call Mr. Keith Mackey as a witness in this trial.
Dated, signed and delivered at Nairobi this 10th Day of May, 2018
A. MBOGHOLI MSAGHA
JUDGE