Daniel Muthee Ngeera v Nation Media Group Limited & John Allan Namu [2017] KEHC 4960 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO. 506 OF 2012

DANIEL MUTHEE NGEERA......................................PLAINTIFF

VERSUS

NATION MEDIA GROUP LIMITED................1ST DEFENDANT

JOHN ALLAN NAMU....................................2ND DEFENDANT

RULING

This ruling relates to an objection that was raised by the counsel for the defendantS when this matter came up for hearing on 6th April, 2017.

On the said date, the plaintiff while giving his evidence in chief sought to produce some exhibits which includes a shirt, two cell phones, a t-shirt and a cap which he was wearing when the photo the subject matter of the proceedings herein was taken and which was later to be published in the Daily Nation.  He identified the said items in a clip that was played in court in the course of the proceedings.

Counsel for the defendants objected to the prosecution of the said items as exhibits for the reason that she was seeing them for the first time.  She stated that she was being ambushed as she ought to have been told about them earlier.

In his response, counsel for the plaintiff submitted that those documents would not have formed part of the documents filed in court and that there is no forum in which they would have found their way to the court file.  He further told the court that the defendants shall not suffer any prejudice if the exhibits are produced as they shall have a right to cross examine the plaintiff on any of them.

The court has considered the objection raised by the counsel for the defendants and the reasons given for the objection.  It has also considered the response by the counsel for the plaintiff.  Counsel for the defendant argued that she was being ambushed as she has not been made aware of the said exhibits beforehand.  It is a legal requirement under the Civil Procedure Act that the plaintiff should file his list of documents and statements together with the plaint.  However, it is noted that the exhibits sought to be produced do not fall within the category of documents as envisaged by the Civil Procedure Act.

While I concur with the counsel for the plaintiff that there is no forum in which the exhibits would have found their way to the court file, it would have been important for him to list then down in the plaintiff’s list of documents and/or items so that counsel for the defendant is put on notice that there are such items to be produced to enable her decide on whether she would have liked to inspect them before the hearing and more particularly before taking of directions under order II of the Civil Procedure Rules.That way, both counsels would have agreed on how to deal with their production.

The mischief that the Civil Procedure Act, 2010, was meant to cure was to end litigation by ambush.  Be that as it may, this court is also alive to the fact that justice shall be administered without undue regard to procedural technicalities as provided for in Article 159 (2) (d) of the Constitution.  The court notes that the plaintiff has not yet concluded his evidence in chief and counsel for the defendant is yet to cross-examine him and therefore no prejudice shall be suffered by the defendant if the said items are produced as exhibits.

In the result, I find that the objection has no merits and the same is hereby dismissed.

Dated, signed and delivered at Nairobi this 11th day of May, 2017.

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L. NJUGUNA

JUDGE