[2013] KEHC 5483 (KLR)
The court held that there is no property in a witness, and neither party can claim exclusive rights to call or prevent the calling of a witness from the same office or in the same capacity as a witness previously called by the other party. The witness intended to be called by the defendant was not the same...
Source-derived case information.
- Citation
- [2013] KEHC 5483 (KLR)
- Parties
- Plaintiff: Helida Asiko; Defendant: Maselina Odawa
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 333 of 2001
- Procedural Posture
- Civil Case / Ruling on Objection During Hearing
- Outcome
- objection dismissed
- Legal Topics
- Witness Examination, Adversarial Process, Conflict of Interest, Right to Call Witness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Helida Asiko
Plaintiff
Maselina Odawa
Defendant
Procedural Posture
Civil Case / Ruling on Objection During Hearing
Legal Issues
- 1 Whether a party can prevent the opposing party from calling a witness from the same office or in the same capacity as a witness previously called by the first party.
- 2 Whether there is property in a witness such that exclusive rights to call or prevent calling a witness exist.
- 3 Whether calling a different person from the same office to testify on a different document constitutes a conflict of interest.
Ratio Decidendi
The court held that there is no property in a witness, and neither party can claim exclusive rights to call or prevent the calling of a witness from the same office or in the same capacity as a witness previously called by the other party. The witness intended to be called by the defendant was not the same individual as P.W.3 and was to testify on a different document. The court found no conflict of interest or procedural impropriety in allowing the defendant to call the witness. The objection was therefore dismissed, and the defendant was permitted to call the witness. The court emphasized that each party should have the opportunity to call evidence that suits its case, regardless of...
Court Disposition
objection dismissed
Orders
- The objection by Mwamu for the plaintiff is dismissed.
- The defendant is allowed to call the intended witness to testify.
Full Case Text
Judgment text and source record
42 paragraphs
.
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL CASE NO.333 OF 2001
HELIDA ASIKO.....................................................................PLAINTIFF
VERSUS
MASELINA ODAWA..........................................................DEFENDANT
R U L I N G
This ruling is prompted by objections raised by Mwamu for plaintiff when this matter came up in Court for hearing on 19/2/2013. The defendant's side intended to call a witness who is working in the same capacity as P.W.3, a witness called by the plaintiff's side earlier (and who Mwamu mistakenly called P.W.4. Records show there is no P.W.4 so far).
The gist of the objection is that since the plaintiff had called P.W.3 as a witness, the defendant's side can't call the same witness or another in the same capacity from the same office. It was feared that there would be conflict of interest. Otieno P.J objected pointing out, inter alia, that there is no property in a witness.
He also promised to avail decided authorities showing that the witness can give testimony.
Later on, Otieno availed to the Court the following decided cases:
HIRJI V MODESSA (1967) EA 724
VERSLOOT DREDGING BV VS HDI GERLING INDUSTRIE VERSICHERUNG AG & 6 OTHERS: (2013) EWHC 581 (COMM)
VANCOUVER COMMUNITY COLLEGE VS PHILLIPS, BARRATT: (1987) BCJ NO.3149
The case of Hirji Vs Modesa (supra) concerned an award of general damages following a traffic road accident and at some point during the trial at the High Court, the plaintiff sought to call the defendant as a witness. This was declined by the High Court.
The matter later went on appeal and the Court held that the plaintiff should have been allowed to call the defendant as a witness.
The case of VERSLOOT DREDGING (Supra) explained what is meant by the assertion that there is no property in a witness.
It explicated that the fact that there is no property in a witness means that one side to the case can't prevent the other side to the case from calling the same witness. No side has the absolute right to have the witness to itself.
The other case, Vancouver Community's case (supra), is, in court's view, not dealing with the calling of the same witness by both sides. It is dealing, inter alia, with the issue of confidentiality or privilege of evidence or information held by expert witness, with the position being that that privilege or confidentiality is lost when the witness starts testifying.
It is clear that the issue we are dealing with here is a simple one especially viewed in light of some of the authorities availed.
In the case of Hirji Vs Modesa (Supra) one would have thought that the court would not countenance the idea of the plaintiff calling the defendant as a witness, our system being adversarial.
BUTthe final court was saying that that is perfectly in order.
In Verslout's case (Supra), it is clear that one side can't claim to have exclusive rights to a witness. In our present case, it is clear that the witness intended to be called is not even the same person who testified as P.W.3. He is a different person coming to give evidence concerning a different document.
The Court thinks that it would be improper to block the witness from testifying.
It would be different however if the witness was coming to give the same evidence that was given earlier by P.W.3. If that was the situation, it would be easy to hold that the defendant's side had ample time to cross-examine the other witness.
BUT it is not so now. The witness is different. The evidence is presumably different. It is not lost on the Court that an office is sometimes a big entity with multifaceted functions. One side may call an official to testify only on aspects that suits its case. The other side should have opportunity too to call evidence which suits its case. That should be so irrespective of whether it is the same person or different persons who will be called to testify.
In this matter therefore, the defendant's side has a right to call evidence that suits its case.
For the afore stated reasons, Mwamu's objection is dismissed. The witness intended to be called will therefore be allowed to testify.
A.K. KANIARU – JUDGE
27/6/13
27/6/13
A.K. Kaniaru – Judge
Dianga G – Court Clerk
No party present
Interpretation: English/Kiswahili
Otieno PJ for defendant
Olel for Mwamu for Plaintiff
COURT: Ruling on objection raised by Mwamu on 19/2/2013 read and delivered in open Court.
Right of Appeal – 30 days
A.K. KANIARU – JUDGE
27/6/2013