[2004] KEHC 1598 (KLR)
The court held that the plaintiff's request to take the evidence of witnesses from Mandera without a formal application was procedurally improper. The rules require a formal application for evidence de bene esse, and the absence of such an application precludes the court from granting the request. Furthermore, since...
Source-derived case information.
- Citation
- [2004] KEHC 1598 (KLR)
- Parties
- Plaintiff: Ibrahim Ahmed Hidik; Defendant: Kenya Power & Lighting Company
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 63 of 2002
- Procedural Posture
- Civil Case / Interlocutory Ruling on Application to Take Evidence De Bene Esse
- Outcome
- Application to take evidence de bene esse without formal application refused; matter stood over generally.
- Legal Topics
- De Bene Esse Evidence, Industrial Accident Liability, Adjournment Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ibrahim Ahmed Hidik
Plaintiff
Kenya Power & Lighting Company
Defendant
Procedural Posture
Civil Case / Interlocutory Ruling on Application to Take Evidence De Bene Esse
Legal Issues
- 1 Whether the plaintiff can have witnesses' evidence taken de bene esse without a formal application.
- 2 Whether the matter can proceed for hearing of witnesses when the defence has not prepared its case after the file was missing.
- 3 What is the proper procedure for taking evidence of witnesses who are not available for the main hearing.
Ratio Decidendi
The court held that the plaintiff's request to take the evidence of witnesses from Mandera without a formal application was procedurally improper. The rules require a formal application for evidence de bene esse, and the absence of such an application precludes the court from granting the request. Furthermore, since the matter had been taken out of the hearing list due to the missing file and the defence was not prepared, it would be unjust to proceed without proper notice and preparation. The court emphasized adherence to procedural rules and fairness to all parties, directing the plaintiff to take fresh hearing dates and bear their own costs for the witnesses' attendance.
Court Disposition
Application to take evidence de bene esse without formal application refused; matter stood over generally.
Orders
- Plaintiff to take fresh hearing dates.
- Plaintiff to bear their own costs for the witnesses' attendance.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 63 OF 2002
IBRAHIM AHMED HIDIK ………………………………… PLAINTIFF
VERSUS
KENYA POWER & LIGHTING COMPANY ……….. DEFENDANT
RULING
This suit involves an industrial accident whereby a cable electrocuted a pedestrian in the slum area of Thika.
The hearing was set down for the 9th and 10th of March 2004. On the day of the call over the suit was taken out and matters referred to the deputy registrar on the grounds that the file was missing and could not be traced. The deputy registrar kindly traced the file and according to the advocate for the plaintiff made the file available on 3. 3.04.
The plaintiff on 4. 3.04 took dates for 8. 3.04 as a date to mention this suit. It has now transpired that, though the file had been traced, the plaintiff wishes for the witnesses who come from Mandera to appear to court on Thursday 11. 3.04 and have only their evidence taken down.
The advocate for the defendant, through the advocate for the 3rd party, leaves it to court. The advocate for 3rd party states that as the matter was taken out, his clients were asked not to attend court.
My direction on this matter is as follows, together with the reasons therefor:-
The application made by the advocate for plaintiff to examine witnesses evidence as they come from Mandera amounts to requesting for evidence taken De Benee esse. This means that, evidence of a person and or witness is taken down. The suit is then suspended until a suitable date is found. To do this, there must be a formal application made to court. In the absence of this it is not possible for the court to proceed as such. See Order 17 r 11 CPR as read with Order 17 r 14 CPR. The court file had been missing. The suit was referred to the deputy registrar to trace the file. The deputy registrar has now traced the file after a few weeks.
This court had taken this matter out of the list. The party cannot come to court to ask for a hearing date of the witnesses in absence of the defence preparing their case. If all the parties were ready to proceed on the 9th and 10th for March 2004 and the deputy registrar had notified this court as such, with knowledge of the parties – the practice rules allows the deputy registrar to fix cases that are ready for hearing more so at the call over. As the defendants were not aware of this, in the interest of justice this matter stands taken out of the list.
There is another form of recording evidence for witnesses and that is before an examiner – especially so where witness are abroad.
See Order XXVII CPR. Such procedure is by way of an application, (See Order XXVII r 20 CPR), during the old days at the stage of summons for directions.
I would hereby direct that the plaintiff is to take fresh hearing dates. The advocate for the plaintiff had 2 weeks in which to notify this witnesses not to attend court. They are to bear their own costs. The matter is stood over generally. Dates in the registry. Costs in the cause.
Dated this 8th day of March 2004 at Nairobi.
M.A. ANG’AWA
JUDGE
Ahmednasir, Abdikadir & Co. Advocate for the plaintiff
Mohammed & Muigai advocates for defendant
Pramod Patel Advocate for the 3 rd party