[2014] KEHC 2328 (KLR)
The court found that the applicant had demonstrated sufficient grounds for the admission of the affidavit of Mr. Pooventhran Moodley, who is the principal witness for the plaintiff and is unable to attend court in person due to ill health and the high cost of travel from Namibia. The affidavit was properly sworn...
Source-derived case information.
- Citation
- [2014] KEHC 2328 (KLR)
- Parties
- Plaintiff: Proton Motors CC; Defendant: Henry N. Khaemba; Defendant: Hussein Dado
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 51 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Admission of Affidavit Evidence
- Outcome
- application allowed, conditional upon proof of service
- Judges
- DO Ogembo
- Legal Topics
- Admission of Affidavit Evidence, Foreign Affidavit Authentication, Leave of Court, Absence of Witness, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Proton Motors CC
Plaintiff
Henry N. Khaemba
Defendant
Hussein Dado
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Admission of Affidavit Evidence
Legal Issues
- 1 Whether the court should grant leave for the affidavit of a foreign-based witness to be admitted and read in evidence.
- 2 Whether the application was properly served upon the respondents.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient grounds for the admission of the affidavit of Mr. Pooventhran Moodley, who is the principal witness for the plaintiff and is unable to attend court in person due to ill health and the high cost of travel from Namibia. The affidavit was properly sworn before a Notary Public and authenticated by the Registrar of the High Court of Namibia. The court was satisfied with the merits of the application, subject to proof of service of the application upon the respondents. Accordingly, the application was allowed as prayed, conditional upon proof of service.
Court Disposition
application allowed, conditional upon proof of service
Orders
- Leave is granted for the affidavit of Pooventhran Moodley to be admitted in evidence and read at the hearing, subject to proof of service of the application upon the respondents.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL &ADMIRALTY DIVISION
HCC NO. 51 OF 2008
PROTON MOTORS CC...........................………PLAINTIFF
-VS-
HENRY N. KHAEMBA ............................1ST DEFENDANT
HUSSEIN DADO......................................2nd DEFENDANT
RULING
The Notice of Motion application before the court is dated 20th May 2013. The application is filed Under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 19 Rule 1 & 2 (1), Order 51 Rule 1 of the Civil Procedure Rules 2010, and all other enabling provisions of the law.
The application seeks the following Orders;
That the Plaintiff be granted leave to have the Affidavit of POOVENTHRAN MOODLEY annexed to the Affidavit sworn in support of this application, admitted in evidence and read at the hearing.
That the costs of this application be in the cause.
The application is supported by Affidavit of Mr. POOVENTHRAN MOODLEYwitnessedin WINDHOEK, NAMIBIAon 20th May 2013 with annextures and further premised on the grounds stated therein.
The application is not opposed but there is no evidence on record that the same was served upon the Respondents. Neither is there an affidavit of service to confirm that it was served.
The main reasons for the application is that the said MR. POOVENTHRAN MOODLEY is the Managing Director of the Plaintiff’s company and is the Plaintiff’s principal witness in this suit. The witness resides in WINDHOEK, NAMIBIA and it would be unreasonably expensive for the Plaintiff to facilitate the personal attendance of the witness. Further, it is submitted that the witness is also suffering from ill health with a heart problem and is on chronic medication and has been advised by his Doctor against travelling to Kenya. The travel costs is said to be in the region of USD 11,500. 00 which is said to be unreasonable.
The applicants Affidavit was sworn before a Notary Public in WINDHOEK, NAMIBIA and was properly authenticated by the Registrar of the High Court of Namibia.
The application is also supported by a report by DR. P. VERBURGE who confirms that the witness is not fit to travel to Kenya.
On the above grounds I am satisfied that the application has merits the grant, and subject to proof before me that the application was served, I allow it as prayed.
Orders accordingly.
Dated, Read and Delivered at NAIROBI this 26th Day of September 2014.
E.K.O OGOLA
JUDGE
PRESENT:
Ogunde for Applicant
Absent for Defendant
Teresia – Court clerk