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ELCAllowedNot stated in judgment (Notice of Motion dated 2nd May 2017)· [2018] KEELC 1116 (KLR)

Silvano Corsaro v Luigi Formica & another [2018] KEELC 1116 (KLR)

High Court of Kenya (Environment and Land Court jurisdiction, Malindi)
31 October 2018
JOJ.O. Olola
1,364 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed an overseas witness too ill to travel to testify by video link, confirming courts can embrace technology even without specific legislation.

What this practically means

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Executive summary

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The Plaintiff, Silvana Corsano, applied by Notice of Motion dated 2nd May 2017 for leave to dispense with the physical attendance of her witness, Leonello Anderlini, a 79-year-old Italian legal practitioner suffering from severe heart disease, and to have him testify via video conferencing. The Defendants opposed, arguing the witness had avoided court since 2013 to hide his demeanour and defeat face-to-face cross-examination. The dispute concerns Plot No. 631 Malindi, registered in the names of the Plaintiff and the 1st Defendant (her estranged husband of 30 years) as tenants in common, and an Indenture of 24th September 1997 allegedly executed before Anderlini, through which the 2nd Defendant purportedly purchased the property. The witness's unavailability had stalled the partly-heard case for over a decade; a near-similar application was dismissed by Angote J in a Ruling of 14th September 2016 on natural justice grounds. Olola J, applying Republic v Kipsgei Cosmas Sigei, held that the absence of specific legislation on video evidence does not outlaw its admission and that courts must keep pace with technological advancement. Following R v Davis, the court held face-to-face confrontation, though important, is not indispensable where reliability is otherwise assured. The application was allowed, conditional on the Plaintiff bearing installation costs, with 30 days for the parties to agree practical arrangements before the Deputy Registrar, mention on 11th December 2018, and costs of the application in the cause.

Key legal issues

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01

Admissibility of video-conference evidence absent specific legislation

Holding

A court may allow testimony by video conferencing even without specific legislation, exercising its inherent power to do justice and adopting a common-sense approach to technological advancements.

Reasoning

Relying on Republic v Kipsgei Cosmas Sigei, the court held that the absence of specific legislation on video evidence does not outlaw its admission. Courts have inherent power to do justice in accordance with the law and must respond to and keep pace with advancements in science, technology and societal change. The New Zealand authority R v Misic and the English authorities on recorded evidence reinforced that information, not its medium, is definitive, subject to accuracy and reliability.

p. 2
02

Whether video-link testimony denies the defence face-to-face cross-examination

Holding

While face-to-face cross-examination is important in these acrimonious proceedings, it is not indispensable and may be dispensed with where the reliability of the testimony is otherwise assured.

Reasoning

The defence argued the witness was avoiding court to hide his demeanour and deny face-to-face cross-examination. The court accepted the defence would relish one-on-one cross-examination but, following R v Davis, held such confrontation is not an indispensable element and may be dispensed with where necessary for public policy and where reliability is otherwise assured. Video conferencing would still allow cross-examination while propelling the decade-stalled case forward.

p. 2

Legal principles established

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  • The absence of specific legislation on video evidence does not outlaw the admission of such evidence; courts must keep pace with advancements in science and technology.
  • Face-to-face confrontation with trial witnesses, though important, is not necessarily an indispensable element and may be dispensed with where necessary and where the reliability of the testimony is otherwise assured.

Court orders

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  1. 1.The attendance of the Plaintiff's witness Leonello Anderlini is dispensed with at the further hearing of the suit
  2. 2.The witness is allowed to give his testimony through video conferencing, on condition that the Plaintiff bears any costs arising from and incidental to the installation of the procedures necessary for video conferencing
  3. 3.The parties are granted 30 days to appear before the Deputy Registrar to agree on the practical aspects of setting up the video conferencing and address any concerns as to the procedure
  4. 4.The matter to be mentioned before the Court on 11th December 2018 for further directions
  5. 5.The costs of the application shall be in the cause

Authorities

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Cases cited (4)

  • Republic -vs- Kipsgei Cosmas Sigei & Another
  • R-V- Misic
    (2002) 2 LRC 1
  • R vs Masqsud Ali
    (1966) 1 QB 688
  • R -vs- Davis
    (2008) UKHL 36
Jurisdiction invoked
Inherent powers of the court; civil procedure governing the taking of evidence (no specific statutory provision cited)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Silvano Corsaro v Luigi Formica & another [2018] KEELC 1116 (KLR)", Case Analysis (2018). Not stated in judgment (Notice of Motion dated 2nd May 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1116/eng@2018-10-31

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