[2021] KEHC 13665 (KLR)
The High Court determined that the constitutional petition was unnecessary because the issue of compelling the respondent to attend court and produce documents is a matter within the jurisdiction and discretion of the trial court. The respondent's duty, regardless of whether he possesses the documents, is to attend...
Source-derived case information.
- Citation
- [2021] KEHC 13665 (KLR)
- Parties
- Applicant: Hezron Pherez Otieno; Respondent: Nyatike Sub County Director of Education
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Petition 9 of 2019
- Procedural Posture
- Miscellaneous Constitutional Petition / Ruling on Notice of Motion
- Outcome
- petition dismissed with directions
- Judges
- KW Kiarie
- Legal Topics
- Right to Fair Trial, Production of Documents, Witness Summons, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hezron Pherez Otieno
Applicant
Nyatike Sub County Director of Education
Respondent
Procedural Posture
Miscellaneous Constitutional Petition / Ruling on Notice of Motion
Legal Issues
- 1 Whether the respondent can be compelled by constitutional petition to attend court and produce documents relating to the registration of Sori Sunrise Academy.
- 2 Whether the trial court, rather than the High Court, is the proper forum to address the respondent's attendance and production of documents.
Ratio Decidendi
The High Court determined that the constitutional petition was unnecessary because the issue of compelling the respondent to attend court and produce documents is a matter within the jurisdiction and discretion of the trial court. The respondent's duty, regardless of whether he possesses the documents, is to attend court and inform the trial magistrate accordingly. The High Court emphasized that the trial court is the appropriate forum to address non-compliance with witness summons and to make any necessary orders under the law. In the interest of justice, the High Court ordered that the respondent must avail himself to the trial court upon service of witness summons, and any further...
Court Disposition
petition dismissed with directions
Orders
- The respondent is ordered to avail himself/herself to the trial court once served with witness summons.
- In case of failure to attend without good reasons, the trial court may deal with the issue as mandated by law.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT HOMA BAY
MISCELLANEOUS CONSTITUTIONAL PETITION NO. 9 OF 2019
HEZRON PHEREZ OTIENO.......................................................PETITIONER
VERSUS
NYATIKE SUB COUNTY DIRECTOR OF EDUCATION....RESPONDENT
RULING
1. The petitioner moved the court by way of Notice of Motion dated 2nd September, 2019. It was brought under sections 1A, 1B, 3A, 63(e) of the Civil Procedure Act, CAP. 21 Laws of Kenya and under Articles 22, 23 (1) & (3) 35 (b), 47 (i) and 48 of the Constitution of Kenya. The petitioner is seeking the following orders:
a. That the respondent be ordered, compelled and/or commanded to attend the Senior Resident Magistrate’s Court at Ndhiwa on the 30th day of October, 2019 on behalf of the petitioner to furnish or produce the original registration documents from his/her office pertaining to the registration of Sori Sunrise Academy.
b. That costs be in the cause.
2. The application was premised on grounds that can be summarized as follows:
a. That there is a matter pending at Senior Resident Magistrate’s Court at Ndhiwa involving the registration of Sori Sunrise Academy.
b. That the evidence of the respondent will assist the court in reaching a fair judgment.
c. That the respondent has been summoned severally and has failed to turn up in court without reasons.
3. The respondent opposed the petition giving various reasons which can be summarized as follows:
a. That the respondent is not in possession of the said documents.
b. That the respondent had genuine reasons for the failure to attend court.
4. After perusing the application and the submissions by both parties, I find that this is a matter which the trial court ought to have been invited to deal with. The petition was unnecessary and per chance the pending civil suit could probably be finalized by now.
5. Whether the respondent has the custody of the documents sought or not, his duty was to attend court and inform the trial magistrate what he knew about the matter. This cannot be the subject of this petition.
6. If indeed the respondent failed to attend court due to ill health, then he can proceed to testify since he is no longer in in bad health.
7. Though I have observed that this is a matter that the trial court could have been in a position to deal with, in interest of justice, I will make an order that the respondent to avail himself/herself to court once served with the witness summons. In case of failure without good reasons, then the trial court may be at liberty to deal with the issue as mandated by the law.
8. Costs be in the cause.
DELIVERED AND SIGNED AT HOMA BAY THIS 27TH DAYOF JULY, 2021
KIARIE WAWERU KIARIE
JUDGE