Antony Ashley Burch v Sampat T/A Kilifi Enterprises [2015] KEELC 257 (KLR)
The bottom line
#A Kenyan court ruled that a plaintiff who sues cannot avoid travelling to court to testify by substituting an affidavit, even where travel is costly.
What this practically means
#Executive summary
#Key legal issues
#Whether a plaintiff may testify by affidavit under Section 35(1) of the Evidence Act to avoid travel expenses
No. Section 35 does not aid a party who files a suit and refuses to testify because of the expenses of testifying; the proviso applies only to witnesses, not parties.
The court examined the proviso to Section 35, which excuses the calling of the maker of a statement where attendance cannot be procured without unreasonable delay or expense. It held that this applies to witnesses who are makers of documents, not to parties to a suit. If a plaintiff dies or cannot be found, the suit abates or is dismissed; it cannot proceed by affidavit where commenced by plaint. The expenses (about Kshs.364,000) also did not outweigh the claim of about Kshs.3,060,000 plus vacant possession.
Legal principles established
#- Section 35 of the Evidence Act does not permit a party who has filed a suit to give their evidence by affidavit merely because attending court would incur expense; the proviso applies only to witnesses, not parties to a suit
Court orders
#- 1.The Plaintiff's Application dated 5th March 2015 is dismissed with costs
- Jurisdiction invoked
- Original civil suit jurisdiction (landlord and tenant claim); application under Section 35(1) of the Evidence Act (Cap 80)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Antony Ashley Burch v Sampat T/A Kilifi Enterprises [2015] KEELC 257 (KLR)", Case Analysis (2015). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/257/eng@2015-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.