[2023] KEHC 23223 (KLR)

Wetangula v British Broadcasting Corporation (Civil Case 444 of 2015) [2023] KEHC 23223 (KLR) (Civ) (5 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23223 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 444 of 2015

CW Meoli, J

October 5, 2023

Between

Senator Moses Masika Wetangula

Plaintiff

and

British Broadcasting Corporation

Defendant

Ruling

1. Before the court for determination is the Notice of Motion brought by British Broadcasting Corporation (hereafter the Applicant) and dated 13th July, 2022. The substantive prayers sought therein are an order directing that a letter of request be sent to the High Court of England requesting it to conduct an examination of the relevant witnesses and to obtain all relevant information and documentation for return to the High Court of Kenya; and a further order staying the proceedings in the present suit pending the outcome of the aforesaid examination and receipt of the requisite information and documents.

2. The application is expressed to be brought inter alia under Order 28, Rule 4 of the Civil Procedure Rules (CPR); Section 54 of the Civil Procedure Act (CPA); Section 10 of the Judicature Act; and the provisions of the Foreign Tribunals Evidence Act 1856.

3. The Motion is premised on the grounds laid out on its face and the affidavit of the Applicant’s advocate Samir Inamdar. To the effect that the suit, which is in the nature of a defamatory claim, arose from broadcasts aired/published by the Applicant herein on 30th November, 2015 and 4th December, 2015 through a programme feature titled “Panorama: The Secret Bribes of Big Tobacco”. Detailing allegations of corrupt payments made by British American Tobacco (BAT) to various civil servants and politicians across Eastern and Central Africa, including Senator Moses Masika Wetangula who is the plaintiff herein (hereafter the Respondent).

4. The deponent stated that the substratum of the allegations forming the basis for the said broadcasts arose from information and documentation disclosed by one Paul Hopkins (hereafter the alleged whistleblower) who was at the material time an employee of BAT. That BAT conducted its own internal investigations on the said allegations, the details of which the Applicant sought to obtain vide the letter dated 27th June, 2022 to no avail. That the said evidence and documentation upon are relevant to the matters in issue in the present suit, including forming a basis for the Applicant’s defence case, and will greatly assist the court in deciding on the issues arising.

5. The Motion was opposed by the Respondent who swore a replying affidavit on 8th December 2022. Therein, he averred that the suit is an old matter which has already been certified ready for hearing upon the close of pleadings. The Respondent also averred that there has been inordinate delay and laxity on the part of the Applicant in bringing the Motion since the filing of the suit and therefore urged the court not to exercise its discretion in favor of the Respondent. He stated that the Motion, which has been brought under non-existent legal provisions, will cause great inconvenience since the orders sought may require further orders, requiring the makers of the relevant documents to be summoned into the court’s jurisdiction to give evidence. The court was therefore urged to dismiss the Motion.

6. Advocate Samir Inamdar swore a supplementary affidavit and a further supplementary affidavit on 13th and 14th October, 2022 respectively, in rejoinder. In his supplementary affidavit, the advocate averred that the essence of the Motion is in the fact that the Applicant has not been successful in obtaining the relevant documentation sought from BAT despite requests made. By way of his further supplementary affidavit, the advocate stated that he had received a response letter from BAT wherein matters which fall within the context of the proceedings in the suit were raised.

7. The court directed that parties file written submissions on the Motion. Counsel for the Applicant anchored his submissions on Section 53 and 54 of the CPAand Order 28, Rule 4 of the CPRregarding the powers of a court to issue a commission or a letter of request to examine a person. As well, counsel cited the decision in Premchand Raichand Ltd v Quarry Services of East Africa Ltd (No. 3) [1972] EA 162 inter alia, on the principles for consideration by a court in determining whether or not to issue a commission. Counsel also placed reliance on the English case of Atlantica Holdings Inc v Sovereign Wealth Fund & others [2019] EWHC 319 (QB) on the matters to be considered by an English court upon receipt of a request/commission from a foreign court.

8. It was contended that the delay in the suit was occasioned by various factors, including laxity on the part of the Respondent in setting the suit down for hearing, and the effects of the Covid-19 pandemic. Counsel further submitted that the delay in bringing the instant Motion was occasioned by the fact that the Applicant upon changing its advocates in March 2022, received legal advice regarding the need for the additional documentation/evidence now sought, to assist in its defence. Counsel further attributed the delay to non-disclosure on the part of BAT. Reference was made to various decisions including Raila Odinga & others v IEBC & others [2013] eKLR and Pinnacle Projects Limited v Presbyterian Church of East Africa, Ngong Parish & another [2019] eKLR as to the applicable principles relating to introduction of new evidence during or after the trial stage of a case. The court was therefore urged to exercise its discretion in favour of the Applicant.

9. For his part, the Respondent’s counsel contended that firstly, there has been inordinate delay on the part of the Applicant in bringing the Motion and that the Applicant all along had knowledge of the information/facts pertaining to its defence. Counsel further asserted that the orders sought are ambiguous, since the Applicant appears not to know the identity of witnesses and information which would be considered relevant to its defence case. Here, counsel citing inter alia, the decision in re Asbestos Insurance Coverage Cases [1985] 1 WLR 331 pertaining to the form and content of a letter of request. It was counsel’s contention that the Applicant is merely seeking the court’s assistance in gathering evidence by way of a fishing expedition.

10. Counsel argued that the orders sought are untenable since they would impede the Respondent’s right to cross-examine the witnesses whose evidence is to be relied upon, citing Fredrick Kigwa Odulah v Titus Wanyonyi Wasianju [2019] eKLR. Finally, counsel for the Respondent argued that the instant Motion does not meet the threshold for granting stay of proceedings, per principles spelt out in Kenya Wildlife Service v James Mutembei [2019] eKLR. Hence, the Respondent pleaded with the court to dismiss the Motion with costs.

11. The Applicant’s counsel rejoined with supplementary submissions essentially restating the averments made in his respective affidavits and earlier submissions, counsel disputing that there was inordinate delay in bringing the Motion. In response to the submission by the Respondent that the orders sought are vague in nature, counsel argued that the Motion is aimed at obtaining specific documents within the knowledge of BAT and which documents relate to the investigation which was carried out by BAT in respect of the allegations which form the crux of the dispute herein. He asserted that the Applicant had no intention of calling any witness from BAT and hence the Respondent’s argument that his right to cross-examination will be impeded cannot stand. On those grounds, the court was once more urged to allow the Motion.

12. The Court has considered the material canvassed in respect of the Motion. Motion seeks twin orders. The court will first address the prayer for an order directing that a letter of request be sent to the High Court of England requesting it to conduct an examination of the relevant witnesses and to obtain all relevant information and documentation for return to the High Court of Kenya. As noted earlier, the Motion was brought under various legal provisions, though it is also noted that the said Motion did not set out the specific provisions of some of the statutes invoked.

13. Sections 52-54 of the CPAprovide for issuance of commissions/letters of request in the manner hereunder:“52. Power of court to issue commissionSubject to such conditions and limitations as may be prescribed, the court may issue a commission—(a)to examine any person;(b)to make a local investigation;(c)to examine or adjust accounts; or(d)to make a partition.53. Commission to another court(1)A commission for the examination of any person may be issued by the High Court to any subordinate court or to any advocate, and by a subordinate court of the first or second class to any other subordinate court situate in a district other than the district in which the court of issue is situate and having jurisdiction in the place in which the person to be examined resides.(2)Every court receiving a commission for the examination of any person under subsection (1) shall examine him or cause him to be examined pursuant thereto, and the commission, when it has been duly executed, shall be returned, together with the evidence taken under it, to the court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of the order.54. Letter of requestIn lieu of issuing a commission, the High Court or a subordinate court with the sanction of the High Court may issue a letter of request to examine a witness residing at any place outside Kenya”.

14. Additionally, Order 28 of the CPRmakes general provision for issuance of commissions. Rule 4 in particular and which was cited in the Motion, states that:“Where any court to which application is made for the issue of a commission for the examination of a person residing at any place not in Kenya is satisfied that the evidence of such person is necessary, the court may issue such commission or a letter of request.”

15. From the foregoing, it is clear that the courts are generally bestowed with powers to issue commissions and/or letters of request for the examination of persons, both in and outside of their jurisdiction. However, such discretion ought to be exercised judicially and upon satisfaction as to the relevance and/or necessity of the evidence sought.

16. In the present case, the court upon looking at the prayers in the motion together with the supporting material noted that the prayer for an order for issuance of a request is apparently intended to impose upon the High Court of England, the duty of carrying out examination and identification of all relevant evidence and witnesses. That seems to the court too wide a net to cast. The motion in no way sets out the particulars of the evidence sought to be obtained and/or the identity and number of witnesses whose testimony is desired by the Applicant. In the court’s view, the orders while far-reaching are vague as it appears that the Applicant has neither identified in specific detail the nature nor the extent of evidence it is seeking and intends to rely on.

17. In addition, whereas the Applicant asserted that BAT had allegedly carried out investigations pertaining to the impugned broadcasts, the Applicant did not set out which aspects of that investigation are to be relied upon in its defence and which documents would be deemed pertinent. It is worth mentioning here that the court does not ordinarily lend itself to issuance of blanket orders that would likely be difficult, if not impossible to implement, and therefore in vain. In short, the application before the court is so bereft of relevant detail and information that the court cannot satisfy itself that the evidence of the intended witnesses is pertinent or necessary.

18. Indeed, in my reading of Section 54 of the CPAwhich appears more applicable to the facts of this case, the provision envisages a request being issued in respect of a specific identified witness or witnesses residing outside Kenya and in respect of evidence relevant or necessary to the case at hand. The Respondent’s objections in this regard appear merited.

19. In the premises, the court finds that the prayer seeking an order directing issuance of a request as herein framed is too ambiguous to be allowed and consequently, the court declines to grant the same. In the circumstances, the court does not deem it necessary to consider the second prayer seeking the stay of proceedings pending the outcome of the examination and receipt of the requisite information and documents, pursuant to the request.

20. The upshot therefore is that the Notice of Motion dated 13th July, 2022 is hereby dismissed with costs to the Plaintiff/Respondent.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 5TH DAY OF OCTOBER 2023. C.MEOLIJUDGE