Legal Guides

Commission to Examine a Witness in Kenya: Order 28 Procedure

A witness who cannot conveniently attend a Kenyan civil court does not have to be ignored or replaced with an informal statement. Kenyan procedure allows the court to issue a commission so that evidence can be taken in a controlled way outside the ordinary courtroom. For a witness abroad, the court may instead issue a letter of request. The remedy is discretionary and depends on necessity, a clearly identified witness and evidence that is genuinely relevant to the issues.

A commission is not a device for outsourcing disclosure, asking another court to find evidence, or avoiding cross-examination. The applicant must define the evidence, explain why normal attendance is impracticable, propose workable safeguards and accept the expense and timetable required to return the deposition to the trial court.

What is a commission to examine a witness?

Section 52 of the official Civil Procedure Act permits a court, subject to prescribed conditions, to issue commissions to examine a person, make a local investigation, examine or adjust accounts, or make a partition. A witness commission is therefore one species of an incidental court process. It preserves judicial control while allowing evidence to be taken somewhere other than the trial courtroom.

Under section 53, the High Court may send a commission for examination to a subordinate court or an advocate. A subordinate court of the first or second class may send one to another subordinate court outside its district where the witness resides. The receiving court examines the witness, or causes the examination, and returns the commission with the evidence unless the issuing order directs otherwise.

For a witness outside Kenya, section 54 allows the High Court, or a subordinate court with the High Court’s sanction, to issue a letter of request instead of a commission. Section 55 addresses commissions issued by foreign courts. These provisions matter because evidence-taking across borders engages the authority of both the Kenyan court and the foreign state.

Who may be examined under Order 28?

The Civil Procedure Rules implement the Act. Order 28 rule 1 allows a commission, on interrogatories or otherwise, for a person within the court’s jurisdiction who is exempt from attending or is unable to attend because of sickness or infirmity. Rule 2 permits the court to appoint a suitable person to conduct an examination within its local limits.

Order 28 rule 3 covers a person resident beyond the court’s local limits, a person about to leave those limits before the required examination date, and a civil or military government officer whose attendance would, in the court’s opinion, harm the public service. The application should identify the precise limb relied on and prove its factual basis.

Convenience alone is rarely a complete explanation. For sickness or infirmity, obtain current medical evidence that addresses ability to travel and attend, not merely a diagnosis. For imminent departure, attach travel or relocation evidence and explain why the testimony cannot be taken before departure. For distance, give the actual residence and explain why attendance by ordinary summons is disproportionate or impracticable.

Witness abroad: commission or letter of request

Order 28 rule 4 provides that, when the court is satisfied that evidence from a person outside Kenya is necessary, it may issue a commission or letter of request. The word “necessary” is important. Identify the witness, the disputed facts the witness can prove, and why other admissible evidence is insufficient.

The Supreme Court’s decision in Ingang’a & 6 others v James Finlay (Kenya) Limited explains the cross-border framework. Sections 54 and 55 and Order 28 require judicial assistance; a foreign interlocutory order does not simply execute itself in Kenya. The Court identified a commission rogatoire or letter of request to the High Court as the appropriate route for assistance with evidence and related investigative steps.

Before filing, investigate the receiving country’s requirements. A letter may need a particular form, translation, diplomatic transmission, local-court filing, witness notice, oath and arrangements for counsel. The Kenyan order should not promise a method the foreign authority cannot lawfully execute.

What the application must prove

File the motion in the existing suit and support it with an affidavit by a person who knows the facts. A persuasive application normally establishes:

• the witness’s full identity, residence and contact details;
• the issues in the pleadings to which the testimony relates;
• a focused summary of the evidence expected;
• why the evidence is material and cannot fairly be omitted;
• the Order 28 ground making normal attendance unavailable or unsuitable;
• steps already taken to secure voluntary attendance or another lawful method;
• the proposed commissioner, receiving court or foreign authority;
• how examination, cross-examination, interpretation and exhibits will be handled;
• the estimated expense and who will deposit it; and
• a realistic completion and return date that protects the hearing timetable.

Attach the pleadings, witness statement or proof, relevant correspondence, medical or travel evidence, proposed questions where interrogatories are sought, and a draft commission or letter. If documents will be put to the witness, paginate and identify them. If confidentiality is claimed, propose a lawful protective direction rather than withholding the material from the opponent.

Specificity: the lesson from Wetangula v BBC

In Wetangula v British Broadcasting Corporation, the High Court recognised its power to issue commissions or letters of request, but stressed that discretion is exercised upon proof of relevance or necessity. The proposed request was refused because it cast too wide a net and did not identify the witnesses or the nature and extent of the evidence with sufficient detail.

That decision gives a practical drafting rule: do not ask a foreign court or commissioner to investigate the case for you. Name each witness where possible, state the topics, connect each topic to a pleaded issue, list the documents and explain the proposed examination. A narrow request is easier for the Kenyan court to assess, the opponent to answer and the receiving authority to execute.

If several witnesses are proposed, explain why each is necessary and whether one commission can deal with them efficiently. Avoid phrases such as “all relevant persons,” “all documents concerning the dispute” or “any evidence discovered.” Those are not substitutes for a defined evidential request.

Interrogatories, oral examination and cross-examination

Order 28 allows examination on interrogatories or otherwise. Written interrogatories can reduce travel and scheduling difficulties, but they may be inadequate where credibility, disputed documents or follow-up questions matter. An oral examination can preserve cross-examination but requires a suitable venue, recording method, oath, interpreter if needed and rules for objections.

The applicant should propose a balanced protocol. State which advocates may attend, whether participation is physical or remote, who administers the oath, how the transcript or audiovisual record is certified, how exhibits are marked and how objections are recorded for the trial judge. The opposing party must have a fair opportunity to test the evidence.

A commission should complement, not bypass, normal witness preparation. Exchange the witness statement and documents in time, comply with case-management directions and address any late evidence application. Our guide on the Order 11 pre-trial conference explains how witness and document readiness fits into the trial timetable.

Execution and return of the commission

Order 28 rule 5 requires a Kenyan court receiving a commission to examine the person or cause the examination. Rule 6 concerns return of the executed commission together with the evidence to the issuing court, subject to the terms of the order. Do not treat appointment of a commissioner as the end of the process.

Counsel should monitor service, witness availability, payment, examination dates, objections, certification and dispatch. Keep a chain-of-custody record for original documents or exhibits. When the material is returned, apply for directions on filing, access, use at trial and any unresolved evidential objection.

The trial court remains responsible for admissibility and weight. A deposition produced through a commission is not automatically proof of every document mentioned. Establish authenticity, relevance and any statutory foundation. Preserve the opponent’s objections for determination rather than asking the commissioner to decide matters outside the mandate.

Expenses, delay and case management

Order 28 rule 13 permits the court, before issuing a commission, reference or appointment, to order payment into court of a reasonable sum for expenses. Prepare a budget covering commissioner fees, venue, transcription, interpretation, foreign counsel, certification, courier or secure electronic transmission and attendance by advocates.

Ask the court to specify the deposit deadline and the consequence of non-payment. If costs are disputed, propose an interim allocation without prejudice to the final costs order. An ambitious cross-border process that no party can fund may only delay the suit.

Commission evidence can affect an existing hearing date. Seek directions early, preferably at case management, and provide milestones rather than requesting an indefinite stay. If attendance can be secured by the ordinary witness summons process, explain why that route is insufficient before asking for a commission.

Responding to an overbroad request

A respondent should address necessity, precision, fairness, proportionality and practicality. Identify evidence already available, disputed relevance, missing witness details, an unrealistic foreign procedure or a protocol that denies effective cross-examination. Offer a narrower alternative where the evidence is legitimate.

Do not oppose merely because the witness supports the other side. A focused commission may advance a fair hearing and avoid adjournments. Useful alternatives include limiting topics, excluding privileged material, setting written questions, permitting oral follow-up, fixing a return date or requiring the applicant to bear initial expenses.

Risks and common mistakes

• waiting until the hearing date before raising a known attendance problem;
• failing to identify the witness or their actual evidence;
• asking a foreign authority to search for witnesses or documents;
• relying on convenience without proving an Order 28 ground;
• ignoring the foreign state’s procedure and transmission requirements;
• omitting cross-examination, oath, interpreter or recording safeguards;
• seeking a blanket stay with no milestones;
• failing to budget and deposit commission expenses;
• assuming returned testimony is automatically admissible; and
• losing the exhibit trail or failing to obtain a certified return.

Practical filing checklist

1. Review the pleadings and isolate the fact the witness proves.
2. Confirm the witness’s residence, availability and reason for non-attendance.
3. Select the correct section 52–55 and Order 28 route.
4. Check the receiving court or country’s procedural requirements.
5. Prepare a detailed affidavit, draft order and proposed protocol.
6. Attach the witness statement, documents and supporting medical or travel evidence.
7. Address cross-examination, interpretation, recording and exhibits.
8. Provide a cost estimate, deposit proposal and firm timetable.
9. Serve the application early and answer practical objections.
10. After execution, secure the certified deposition and seek trial directions.

Obtain usable evidence without derailing the trial

If a material witness is ill, outside the court’s area or abroad, send us the pleadings, witness statement, location details, supporting medical or travel records, relevant documents and the current hearing directions. We can assess whether a summons, commission or letter of request is appropriate, prepare a precise Order 28 application and design a fair evidence-taking protocol that the Kenyan court and receiving authority can implement.