1.The matter was coming up for hearing on October 5, 2022. Counsel for the first defendant Ms Munda, sought to close the first defendants case on the basis that all efforts to secure the attendance of the 1st defendant in court had failed. All correspondence to the first defendant had gone unanswered.
2.Senior counsel Mr Ngatia objected to the application to close the 1st defendants case without calling a witness. It was his contention that the 1st defendant’s testimony is crucial to the determination of this matter as the actions of the 1st defendant were at the heart of the dispute between the plaintiff and the 2nd defendant.
3.Counsel further submitted that the court ought to compel the witness to attend court by issuing a warrant to secure his attendance.
4.Senior counsel brought to the attention of the court ELC Case no 394 of 2017 in which Hon Justice Angote J stated “It is not in dispute that Francis Mburu signed the witness statement in support of the plaintiffs case on October 16, 2019. Having voluntarily signed the said statement, the said Francis Mburu must attend court and give his evidence, which evidence will be tested by the defendants in cross- examination. in the event he fails to attend court on a date to be fixed by this court, the plaintiffs advocate will be at liberty to make an oral application for the issuance of warrants of arrest. “
5.Having considered the submissions by counsel it is evident that the 1st defendant has material evidence to give in this matter.
6.There is no contention that the court has power to compel a witness to attend court.
7.The only issue this court must determine is whether the court can compel a witness who is a party and who has chosen not to attend court to testify.
8.The first defendant has chosen not to adduce evidence in support of its case and counsel for the 1st defendant has opted to close its case. The court cannot compel the 1st defendant to testify in support of its case. The court can only use its power to compel in respect of a party which seeks the assistance of the court. Indeed, this was the finding in the quoted case in which the plaintiff was seeking assistance of the court to secure attendance of his own witness.
9.As such while this court cannot compel attendance of the 1st defendants witness when the 1st defendant has indicated they wish to close their case, the 2nd defendant is at liberty while prosecuting his case to seek the assistance of the court in securing all witnesses necessary for the court to reach a fair determination of the matter.
10.In view of the foregoing the 1st defendant is allowed to close its case. A hearing date to be issued for the 2nd defendants case.