[2006] KEHC 3514 (KLR)

[2006] KEHC 3514 (KLR)

The court held that Order 36 rules 9 and 10 of the Civil Procedure Rules do not provide for the giving of viva voce evidence in proceedings commenced by originating summons. The rules emphasize the use of affidavit evidence and allow for further affidavits or particulars, but not oral testimony. The court further reasoned that constitutional litigation is intended to be accessible, expeditious, and efficient, objectives best served by affidavit evidence. Allowing viva voce evidence would undermine these objectives and risk prejudicing ongoing criminal proceedings, especially where the originating summons is a collateral attack on such proceedings. The applicant had not demonstrated that...

Citation
[2006] KEHC 3514 (KLR)
Parties
Applicant: Paul Kibugi Muite; Respondent: Attorney General
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
31 March 2006
Case Number
? 188 of 2002
Procedural Posture
Miscellaneous Application / Ruling on Directions for Adducing Viva Voce Evidence in an Originating Summons
Outcome
Application for viva voce evidence refused; directions issued for further conduct of the matter.
Legal Topics
Originating Summons Procedure, Affidavit Evidence, Viva Voce Evidence, Fundamental Rights Enforcement
Source Language
English
Constitutional Law Civil Procedure Originating Summons Procedure Affidavit Evidence Viva Voce Evidence Fundamental Rights Enforcement

Case Brief

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Parties

Paul Kibugi Muite

Applicant

Attorney General

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Directions for Adducing Viva Voce Evidence in an Originating Summons

Legal Issues

  1. 1 Whether the applicant should be allowed to adduce viva voce evidence in proceedings commenced by originating summons under Order 36 of the Civil Procedure Rules.
  2. 2 Whether the rules and objectives of constitutional litigation permit or require viva voce evidence in this context.
  3. 3 Whether the application for viva voce evidence was properly made.

Ratio Decidendi

The court held that Order 36 rules 9 and 10 of the Civil Procedure Rules do not provide for the giving of viva voce evidence in proceedings commenced by originating summons. The rules emphasize the use of affidavit evidence and allow for further affidavits or particulars, but not oral testimony. The court further reasoned that constitutional litigation is intended to be accessible, expeditious, and efficient, objectives best served by affidavit evidence. Allowing viva voce evidence would undermine these objectives and risk prejudicing ongoing criminal proceedings, especially where the originating summons is a collateral attack on such proceedings. The applicant had not demonstrated that...

Court Disposition

Application for viva voce evidence refused; directions issued for further conduct of the matter.

Orders

  • Hearing to proceed on the basis of affidavit evidence.
  • Applicant at liberty to file a further affidavit within the next 10 days.