[2022] KEHC 3086 (KLR)

Star Publications Limited & another v Abdullahi & 5 others (Civil Suit 377 of 2013) [2022] KEHC 3086 (KLR) (Civ) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 3086 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 377 of 2013

JK Sergon, J

June 17, 2022

Between

Star Publications Limited

1st Plaintiff

William Pike

2nd Plaintiff

and

Ahmednasir Abdullahi

1st Defendant

Nairobi Law Monthly Limited

2nd Defendant

Mediamax Networks Limited

3rd Defendant

Apollo Kamau

4th Defendant

Nation Media Group Limited

5th Defendant

Larry Madowo

6th Defendant

Ruling

1. The 1st and 2nd plaintiffs herein took out the Notice of Motion dated 31st March, 2022 and sought for the orders hereunder:i.Spent.ii.That the court do issue witness summons to Apollo Kamau to attend court on 26th May, 2022 at 2. 30p.m. and 31st May, 2022 at 2. 30p.m. for purposes of:iii.Giving evidence in respect of the interview he conducted on 22nd August, 2013 with the 1st defendant that was aired by Mediamax Networks Limited.iv.Producing the video clip on respect of the interview he conducted on 22nd August, 2013 with the 1st defendant for purposes of his cross-examination in respect of the interview.v.A certificate of electronic evidence in respect of the video clip of 22nd August, 2013 and the video clip be provided and furnished to the court and the advocates for the plaintiffs and the 1st and 2nd defendants by Apollo Kamau and/or Mediamax Networks Limited in accordance with Section 831 of the Kenya Information and Communications Act No. 2 of 1998 and Section 78A (4) of the Evidence Act.vi.The travelling and other expenses of Apollo Kamau be paid directly to him by the plaintiffs.vii.Costs be in the cause.

2. The Motion stands supported by the grounds laid out on its face and the facts deponed in the affidavits of the 2nd plaintiff.

3. The 1st defendant swore a replying affidavit on 27th April, 2022 to oppose the Motion.

4. The record shows that the suit as against the 3rd and 4th defendants was withdrawn by way of the consent dated 12th November, 2021. Similarly, the suit against the 5th and 6th defendants was withdrawn on 26th October, 2020 also by way of a consent, both of which were adopted as orders of the court.

5. This court directed the parties to file written submissions.

6. I have considered the grounds laid out on the face of the Motion, the facts stated in the supporting and replying affidavits, and the rival submissions and authorities cited.

7. It is clear that the Motion is principally seeking for the indulgence of this court in issuing witness summons to Apollo Kamau to attend court and give evidence, and further seeking for an order that the certificate of electronic evidence in respect to the video clip of 22nd August, 2013 be provided to this court and to the parties herein.

8. On the part of the plaintiffs, it is stated and submitted that when the parties attended court for hearing of the suit on 14th March, 2022 the advocate for the 1st and 2nd defendants objected to the plaintiff’s calling Apollo Kamau (formerly the 4th defendant) and insisted that should they intend to call him, then he ought to be summoned since the suit against him has since been withdrawn.

9. It is also stated and submitted by the plaintiffs that the evidence to be tendered by Apollo Kamau is necessary for the interest of justice to be achieved and also for the production of the video clip which is material to their claim.

10. The plaintiffs also state and submit that Section 83I of the Kenya Information and Communications Act No. 2 of 1998 (“the Act”) and Section 78A (4) of the Evidence Act permit the production of the video clip and/or electronic evidence.

11. In reply, the 1st defendant states in his affidavit that this court only permitted the plaintiffs to file a witness statement for Apollo Kamau but did not permit the extraction of witness summons pertaining to him.

12. The 1st defendant is of the view that the instant Motion is a mere afterthought aimed at prejudicing the defendants’ case and that the plaintiffs had every opportunity to file a witness statement for Apollo Kamau as well as the certificate of electronic evidence prior to the commencement of the hearing but did not.

13. At the submissions stage, the 1st and 2nd defendants argue inter alia, that since the plaintiffs opted to withdraw the suit against the 3rd and 4th defendants, they cannot now purport to call the 4th defendant as a witness and have cited the case of Ransa Company Ltd v Manca Francesco & 2 others [2015] eKLR where the Court of Appeal reasoned that:“In my view, it was un procedural, irregular and unlawful to exclude the appellant who was named as an interested party in the Judicial Review proceedings as a party to the consent. The appellant had filed a lengthy replying affidavit in opposition of the orders sought by the ex parte applicant. The judge overlooked the fact that no consent can possibly be entered into by a claimant as happened in the instant case which purports to take away the rights of a defendant without his knowledge, concurrence or hearing.”

14. Upon my perusal of the record, it is not in dispute that the suits as against the 3rd, 4th, 5th and 6th defendants have been withdrawn.

15. Upon my further study of the record, it is apparent that the hearing of this suit has commenced with the 2nd plaintiff giving his testimony.

16. The provisions of Order 16, Rule 1 of the Civil Procedure Rules stipulate inter alia as follows:“At any time before the trial conference under Order 11 the parties may obtain, on application to the court or to such officer as it appoints in this behalf, summonses to persons whose attendance is required either to give evidence or to produce documents.”

17. In the present circumstances, it is clear that pre-trial directions have already been taken and as earlier mentioned, the matter has proceeded for trial.

18. That notwithstanding, I have not come across anything in the above provision or in the law generally that would preclude courts from exercising their discretion as they deem it necessary in order to meet the ends of justice and to adequately determine the issues in dispute.

19. Furthermore, Section 22 of the Civil Procedure Act cited by the plaintiffs, states that:“Subject to such conditions and limitations as may be prescribed, the court may, at any time, either of its own motion or on the application of any party—(a)…(b)issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid…”

21. The plaintiffs have indicated that the evidence by Apollo Kamau is necessary to their case and in view of the fact that he is no longer a defendant in the matter, I find the explanation given to be reasonable in the circumstances.

22. Furthermore, the 1st and 2nd defendants did not bring any credible evidence to demonstrate the manner and extent to which the testimony to be tendered by Apollo Kamau will be prejudicial to them. In any case, I am satisfied that they will have every opportunity to challenge the plaintiffs’ evidence at the trial.

23. On the subject of the certificate of electronic evidence, I am guided by the provisions of Section 83I of the Kenya Information and Communications Act thus:“Where any law requires information to be presented or retained in its original form, that requirement is met by an electronic record if—(a)there exists a reliable assurance as to the integrity of the information from the time when it was first generated in its final for as an electronic message or otherwise; and(b)where it is required that information be presented, that information is capable of being displayed to the person to whom it is to be presented.”

24. The above is also supported by the provisions of Section 78A (4) of the Evidence Act which stipulates as follows:“Electronic and digital evidence generated by a person in the ordinary course of business, or a copy or printout of or an extract from the electronic and digital evidence certified to be correct by a person in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self-regulatory organization or any other law or the common law, admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract.”

25. Upon my consideration of the explanation given by the plaintiffs that the production of the video clip evidence by Apollo Kamau is necessary as a verbatim interview; and in the absence of any credible evidence to the contrary; I find the explanation to be reasonable. I will reiterate that the defendants will have every opportunity to challenge the evidence tendered by the plaintiffs.

26. For all the foregoing reasons, I am satisfied that it would be only fair for me to grant the orders being sought therein.

27. In conclusion therefore, the Notice of Motion dated 31st March, 2022 succeeds in terms of prayers (ii), (iii) and (iv). Consequently:a)Witness summons shall be issued to Apollo Kamau to attend court on a date to be fixed by the court for purposes of:(i)Giving evidence in respect of the interview he conducted on 22nd August, 2013 with the 1st defendant that was aired by Mediamax Networks Limited.(ii)Producing the video clip on respect of the interview he conducted on 22nd August, 2013 with the 1st defendant for purposes of his cross-examination in respect of the interview.b)A certificate of electronic evidence in respect of the video clip of 22nd August, 2013 and the video clip shall be provided and furnished to the court and the advocates for the plaintiffs and the 1st and 2nd defendants by Apollo Kamau and/or Mediamax Networks Limited in accordance with Section 831 of the Kenya Information and Communications Act No. 2 of 1998 and Section 78A (4) of the Evidence Act.*c.The travelling and other expenses of Apollo Kamau be paid directly to him by the plaintiffs.d.Costs of the Motion shall abide the outcome of the suit.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF JUNE, 2022. ……………………….J. K. SERGONJUDGEIn the presence of:………………………………. for the 1st and 2nd Plaintiffs………………………………. for the 1st and 2nd Defendants