Civil Procedure and Practice - Foreign Tribunals Evidence Act, 1856 - Rules of Court, Part IX - Civil and commercial cause depending before court in Switzerland-Section 2 - Application to take evidence of witness in Kenya Whether competent in absence of certificate by accredited diplomatic agent Whether affidavit by agent in Kenya sufficient evidence - Whether commission rogatoire competent in absence of Convention-Whether application competent as exhibiting letters of request - Examiner not named - Whether Court can name examiner - Procedure after examination.
Case summary
A civil and commercial cause depending before the Court of the First Instance of the Republic and Canton of Geneva, Switzerland, the defendant obtained a commission rogatoire addressed to the “judge or other authority competent, at Nairobi, Kenya, to administer an oath to a named witness and to record his answers to certain questions”. These questions were in chief by the defendant and in cross examination by the plaintiff.
No certificate by an accredited diplomatic agent as envisaged by section 2 of the Foreign Tribunals Evidence Act, 1856, was obtained, nor did the document come through the diplomatic channel asking for assistance from the Supreme Court. The document was sent by the defendant to the Swiss Consul at Tanga, in Tanganyika Territory, who passed the same to an advocate in Nairobi. This advocate then applied to the Court by a summons in chambers, deponing to his instructions in a supporting affidavit and exhibiting the commission rogatoire. No examiner was named in the document. The summons prayed for the appointment of an examiner to give effect to the commission rogatoire. The applicant admitted he had been unable to discover any convention relating to the taking of evidence subsisting between Switzerland and Kenya.
Held (10-3-55):
In the absence of a certificate from an accredited diplomatic agent of the foreign power, the Court could accept the applicant’s affidavit as amounting to evidence sufficient to prove that a civil and commercial suit was pending before the foreign court and that court was desirous of obtaining the testimony of the named witness within the jurisdiction of the Kenya Court, as provided by section 2 of the Foreign Tribunals Evidence Act, 1856, applied to the Colony.
A commission rogatoire is appropriate only where a convention subsists permitting by reciprocity such simplified procedure. No such convention appeared to exist between H.M. Imperial Government and Switzerland, nor did any such appear to be applied to Kenya by notification to the foreign state. The Court would therefore have to regard the document as amounting to letters of request.
Although the letters of request had not been transmitted through the diplomatic channel, it was competent for the party obtaining the same to instruct an agent in Kenya to obtain the evidence, as had taken place in the instant application, which from this aspect was competent.
The Court, in the absence of an examiner named in the letters of request or the summons, could competently name an examiner and so named the Resident Magistrate, Nairobi.The Court further directed that the magistrate should issue a summons to the Witness and that counsel for the applicant should put the questions to the witness and procedure to be in accord with the Rules of Court, Part Ix; after the examination the deposition was to be handed by the examiner to the Registrar who would forward the same through the diplomatic channel to the Swiss Court. Wilcock for applicant.
