[2022] KEHC 13982 (KLR)

Paragon Electronics Limited v Bamburi Special Products (Civil Suit 314 of 2015) [2022] KEHC 13982 (KLR) (Civ) (12 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13982 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 314 of 2015

JK Sergon, J

October 12, 2022

Between

Paragon Electronics Limited

Plaintiff

and

Bamburi Special Products

Defendant

Ruling

1. This ruling is premised on the Notice of Motion brought by the plaintiff/applicant dated 29th April, 2022 and supported by the grounds established on its face and the facts stated in the affidavit of Bulent Gulbahar. The following are the orders being sought therein:i.Spent.ii.That this Honourable Court be pleased to order Ebubekir Sahin to forthwith avail to this court and the plaintiff certified copies of his entire passport or such other travel documents showing his exit from and entry into Kenya from January, 2021 to date to be used and relied on in his further cross-examination to impeach his credit.iii.That the plaintiff be granted leave to also file and rely on contracts between the plaintiff and the plaintiff’s director and Ebubekir Sahin and proof of money owed to be used and relied on in Mr. Ebubekir Sahin’s further cross-examination to impeach his credit.iv.That the costs of the application be borne by Mr. Ebubekir Sahin and the defendant.

2. The Motion is opposed by way of the replying affidavit sworn by Ebubekir Sahin on 7th July, 2022; the Grounds of Opposition of like date brought by the respondent and the notice of preliminary objection lodged by Ebubekir Sahin and dated 10th June, 2022, putting forward the following grounds:a.The plaintiff/applicant has not demonstrated any of the grounds for impeaching the credibility of a witness as set out in Section 163(1) (a-d) of the Evidence Act Cap. 80 Laws of Kenya.b.The Notice to Produce prepared by the plaintiff/applicant relying on Section 63 of the Civil Procedure Act that deals with supplementary proceedings is misguided and premised on bad law as it touches on defendants and not witnesses compelled to testify.c.The orders that the plaintiff/applicant is seeking cannot legally be issued given that Mr. Ebubekir Sahin is not party to the suit in any capacity.d.The application drawn is incurably defective and the same is an abuse of the court process and should be dismissed with costs.

3. When the parties attended court on 22nd July, 2022 they were directed to put in written submissions on the Motion.

4. This court notes that at the time of writing this ruling, only the submissions by the applicant had been made available for consideration.

5. I have considered the grounds presented on the face of the Motion as well as the affidavit in support thereof. I have likewise considered the replying affidavit; Grounds of Opposition and preliminary objection. Furthermore, I have taken into consideration the submissions on record and the authorities cited in support thereof.

6. A brief background of the matter is that the applicant lodged the present suit against the respondent by way of the plaint dated 6th August, 2015 and sought for various sums of money plus costs of the suit and interest thereon at court rates, for alleged loss and damage arising out of a construction arrangement entered into between the parties.

7. The matter is part heard, with Mr. Ebubekir Sahin (“the material witness”) being called to testify. At the point of cross-examination, the hearing was adjourned to enable the applicant serve the documents referred to in its further list and bundle of documents, upon the respondent.

8. Subsequently, the applicant lodged the instant Motion.

9. Returning to the instant Motion, before I consider its merits, I will address the preliminary objection which is essentially challenging the Motion on the basis of the grounds of the Notice to Produce dated 30th March, 2022 filed by the applicant.

10. Upon considering the grounds set out in the preliminary objection, I am of the view that they do not adhere to the tenets of preliminary objections since the same would require a delving into the facts and law, as opposed to being based on a pure point of law where the facts remain undisputed.

11. In view of the foregoing circumstances, the preliminary objection fails and is hereby dismissed with no order on costs.

12. In the same manner, this court notes that the applicant by way of its written submissions raises an argument that the replying affidavit sworn by the material witness is inadmissible and therefore ought to be struck out for having not met the requirements set out under Section 88 of the Evidence Act which stipulates that affidavits sworn outside the Commonwealth are not admissible unless they bear the authority of the person before whom such affidavits are sworn.

13. It is trite law that submissions do not constitute evidence and hence a party cannot be heard to argue its case or present its evidence through its submissions. This was succinctly stated by the Court of Appeal in the case of Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR when it held that:“Submissions cannot take the place of evidence…Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all.”

14. In view of the foregoing position, the applicant cannot be heard to challenge the competence of the replying affidavit through its submissions.

15. Suffice it to say that, upon my perusal of the replying affidavit in question, I note that the same was sworn by the material witness at Mogadishu and witnessed by a Notary Public who it would appear is also based in Mogadishu, thereby bearing the stamp and signature thereof. Moreover, the Notary Public indicated that the material witness had personally signed the affidavit.

16. The above position would therefore dispel the argument by the applicant that the replying affidavit is inadmissible.

17. On the merits of the Motion, it is clear that the orders sought therein are two-fold. The first order relates to whether the material witness should be ordered to comply with the Notice to Produce dated 30th March, 2022 filed by the applicant.

18. The applicant on its part states and submits that the documents sought to be produced in the Notice to Produce are relevant to the ongoing cross-examination of the material witness and are aimed at testing his credibility as a witness pursuant to the proviso of Section 163 of the Evidence Act, Cap. 80 Laws of Kenya.

19. In reply, both the material witness and the respondent aver that the Notice to Produce which essentially seeks to compel the material witness to avail certified copies of his passport and travel records indicating his movements in and out of Kenya in the past one (1) year have no relevance to the subject matter of the suit.

20. The provisions of Section 163 of the Evidence Act state that:“(1)The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him -(a)by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;(b)by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;(c)by proof of former statements, whether written or oral, inconsistent with any part of his evidence which is liable to be contradicted;(d)when a man is prosecuted for rape or an attempt to commit rape, it may be shown that the prosecutrix was of generally immoral character.(2)A person who, called as a witness pursuant to sub-section (1) (a), declares another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.”

21. From my reading and understanding of the above provision and upon my consideration of the record and material placed before me, I note that the purpose behind the abovementioned order being sought is to ascertain the travel movements of the material witness since it is apparent that warrants of arrest that had previously been issued against him were lifted following his explanation that he was out of the country and that he did not frequent Kenya at all material times.

22. In view of all the foregoing circumstances, I am of the view that the applicant has satisfied the threshold required by Section 163(1) of the Evidence Act in respect to the production of the documents set out in the Notice to Produce dated 30th March, 2022.

23. The second order sought touches on the filing of the documents relating to the parties herein and the material witness.

24. The applicant states and submits that the documents in question which include contracts/agreements entered into between the parties and the material witness, and past travel documents are useful in proving that the material witness has been giving contradictory evidence under oath which raises doubts as to his credibility.

25. The material witness and the respondent are of the view that the order sought is unfounded and that the aforesaid documents refer to a separate transaction which is the subject of a separate suit before the subordinate court.

26. Upon my study of the record and my consideration of the rival arguments, I am convinced that in the absence of any clear indication of prejudice that will result to the respondent and/or the material witness, and taking into account that the subject in issue is the credibility of the material witness on the basis of the referenced documents, I am of the view that it would be in the interest of substantive justice to equally grant the order for leave sought.

27. The upshot therefore is that the Notice of Motion dated 29th April, 2022 is hereby allowed giving rise to issuance of the following orders:a.Ebubekir Sahin be and is hereby ordered to forthwith avail to this court and to the plaintiff certified copies of his entire passport or such other travel documents showing his exit from and entry into Kenya from January, 2021 for the purpose of his further cross-examination to impeach his credit.b.The plaintiff herein be and is hereby granted leave to file and rely on contracts between the plaintiff and the plaintiff’s director and Ebubekir Sahin and proof of money owed to be used and relied on in Mr. Ebubekir Sahin’s further cross-examination to impeach his credit.c.Costs of the Motion shall abide the outcome of the suit.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 12TH DAY OF OCTOBER, 2022. J. K. SERGONJUDGEIn the presence of:………………………… for the Plaintiff/Applicant………………………… for the Defendant/Respondent………………………… for Ebubekir Sahin (Witness)