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Court of AppealPartially AllowedCivil Appeal No. 57 of 2018

Safaricom Limited v Jack J. Khanjira & another [2019] KECA 865 (KLR)

Court of Appeal of Kenya
14 March 2019
AVAlnashir VisramWKW. KaranjaMartha Karambu KoomeM. K. Koome
2,543 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed judges can appoint experts on their own motion, but only after consulting both parties on the appointment, costs and process.

What this practically means

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Executive summary

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This appeal arose from an interlocutory order of P.J.O. Otieno, J. of the High Court at Mombasa made on 6th March, 2018 in H.C.C. Suit No. 231 of 2011, a suit in which the respondents alleged that Safaricom had used their mobile banking innovation without consent and rolled out M-Kesho. Without any application by the parties, the learned Judge had decided of his own motion to appoint a private expert, Kebenei Kiplimo, to determine who the originator of the innovation was, directing the parties to agree on documents, dates and fees with the expert. When Safaricom did not participate before the expert, the Judge ordered on 6th March, 2018 that the expert file his report with or without the appellant's input within 40 days. Safaricom appealed on twelve grounds, contending that parties must be bound by their pleadings, were not consulted on the expert's appointment, and that the additional costs were not considered. The Court of Appeal held that although the law permits a court, suo motu, to call expert evidence under Section 48 of the Evidence Act where the justice of the case requires, a court must remain an impartial arbiter, must consult the parties on the appointment, costs and modalities of a private expert, and must lay a solid basis by hearing the parties before deciding that expert evidence is necessary; the issue of originatorship was not apparent on the pleadings. The court allowed the appeal, set aside the order in its entirety, remitted the suit to the High Court for hearing before a Judge other than P.J. Otieno, J., and directed that costs of the appeal abide the outcome of the suit. The Court expressly declined to comment on the merits of the pending suit.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge could, suo motu, order the appointment of an expert to determine the originator of the innovation
  2. 2.Whether the order of 6th March, 2018 directing the expert to file his report with or without the appellant's input was properly made

Key legal issues

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01

Suo motu appointment of an expert by the court

Holding

The court may lawfully call expert evidence suo motu where the justice of the case requires; there was nothing essentially wrong with the Judge suo motu ordering an expert's report

Reasoning

Section 48 of the Evidence Act (Cap 80) provides for opinions of expert witnesses. An expert opinion can be sought by a party in support of its case and can also be called by the court where the court finds such expertise necessary. The impugned order was therefore not ultra vires merely because it was made on the court's own motion.

p. 3
02

Conditions precedent to a suo motu expert appointment

Holding

Before appointing an expert, especially a private one, the court must consult the parties on the appointment, costs, modalities and ambit, and must lay a solid basis after hearing the parties

Reasoning

The court is an impartial arbiter and must not appear to gather evidence for one side. The Judge appointed a private expert without any application by the parties, without agreeing on fees or modalities, and before taking any evidence, on an issue (originator of the project) not apparent on the face of the pleadings. The order was made in haste, was premature and was literally imposed on the parties, warranting being set aside.

Legal principles established

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  • A court may suo motu call expert evidence under Section 48 of the Evidence Act where the justice of the case so requires, but it must first consult the parties on the appointment, costs and modalities, particularly for a private-sector expert
  • A court must establish a solid basis, by hearing the parties, before deciding to call an expert; it cannot determine the need for expert evidence by a cursory look at the pleadings before taking evidence
  • The court must remain an impartial arbiter and must never appear to be gathering evidence for the benefit of one side

Court orders

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  1. 1.Appeal allowed
  2. 2.Order of 6th March, 2018 set aside in its entirety
  3. 3.High Court Civil Case No. 231 of 2011 remitted back to the High Court for hearing by a Judge with jurisdiction, other than P.J. Otieno, J
  4. 4.Costs of the appeal to abide the outcome of the suit before the High Court

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AV
majority
WK
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
On appeal from
High Court of Kenya at Mombasa
H.C.C. Suit No. 231 of 2011
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act against an interlocutory order of the High Court (specific provision not stated in the judgment)

Relief refused

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No determination on whether the nature of the dispute required appointment of an expert

The substantive suit is yet to be heard and the court declined to make any determination bearing on the merits

p. 3

Costs

Costs of this appeal to abide the outcome of the suit before the High Court

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

even where the court feels that expert opinion is necessary, it must consult the parties and agree on the appointment particularly if the expert is not a government expert
p. 4consultation before appointing a court expert
there must be solid basis established before a court can decide to call an expert. Firm ground must be laid and this can only be done by hearing the parties first
p. 4preconditions for calling expert evidence
the court must never lose sight of the fact that it is an impartial arbiter and must never appear to be gathering evidence for the benefit of one side
p. 3judicial impartiality
We have no hesitation in allowing this appeal which we hereby do. The said order is hereby set aside in its entirety.
p. 4disposition - setting aside the impugned order
We direct that High Court Civil Case No. 231 of 2011 be and is hereby remitted back to the High Court for hearing by a Judge with jurisdiction, other than P.J. Otieno, J.
p. 4disposition - remittal

Issues in the judgment

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minor

Counsel for the respondents is recorded with a sic notation, 'my instructions for Ms Ohaga (sic)', suggesting an error in the transcript of proceedings

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Safaricom Limited v Jack J. Khanjira & another [2019] KECA 865 (KLR)", Case Analysis (2019). Civil Appeal No. 57 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/865/eng@2019-03-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.