Wambaa v Nairobi City Council & another (Environment & Land Case 645 of 1998) [2023] KEELC 905 (KLR)
The bottom line
#A Kenyan court confirmed you can summon your opponent's witness to testify if they signed a witness statement but the other side won't call them.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was res judicata given the ruling of October 12, 2022
The application was not res judicata as the earlier ruling dealt with a different matter - preventing the 1st defendant's advocate from closing her case - whereas this application arose only after the case was closed without calling the witness.
The court distinguished the earlier ruling, which concerned an application to compel the 1st defendant's advocate not to close the 1st defendant's case. The present application is a formal application by the 2nd defendant to call a witness on a witness statement, which could only be made after closure of the 1st defendant's case. The cause of action and the parties differ, so res judicata does not apply.
Whether a party may seek the court's assistance to compel an opposing party's witness, who signed a witness statement, to testify
Yes. A witness who signed a witness statement is competent and compellable, and there is no bar to an opposing party seeking the court's assistance under Order 16 to secure his attendance, particularly where the witness is a public officer bound by constitutional values of transparency.
The court relied on Hirji v Modessa, where Law JA held there is nothing improper in one party calling the other party's witness. Additionally, as an employee of the Nairobi City County, the witness is a public officer bound under Article 232(1)(f) to transparency and provision of timely, accurate information, reinforcing his duty to attend and testify.
Legal principles established
#- There is nothing improper in one party calling the other party as a witness in civil proceedings, and a party who has signed a witness statement is a competent and compellable witness for the opposing side.
Court orders
#- 1.Witness summons issued to SG Mwangi to attend court on a date to be given in court and give evidence on the basis of his witness statement dated March 18, 2014
- 2.Costs of the application to be in the course
- Jurisdiction invoked
- Inherent jurisdiction under Order 16 of the Civil Procedure Rules to issue witness summons; Article 232(1)(f) of the Constitution invoked on the duties of public officers
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wambaa v Nairobi City Council & another (Environment & Land Case 645 of 1998) [2023] KEELC 905 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/905/eng@2023-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.