I have considered the objection raised by Mr. Mbaka in regard to the 5th Defendant testifying in this case. The gist of that objection is that the 5th Defendant did not file a witness statement upon which he can give evidence. On the other hand, Mr. Saluny has implored this court to allow the 5th Defendant to testify so as to make a clarification on the statement taken from him by the Plaintiff. it is Mr. Saluny’s submission that the 5th Defendant is not a mere witness but a party who has even filed a defence which in all fairness he must be allowed to ventilate. To hold otherwise would be an affront to his constitutional right to a fair hearing. of course it would be different if the position was that the 5th Defendant was intent on calling a witness without filing a witness statement. I do not think that the drafters of the rules intended to shut out a party from the seat of judgment merely for failure to file a witness statement. In my view provided that party has filed a defence that party ought to be allowed to give evidence in support of that defence. However as I had ruled earlier the 5th Defendant cannot be allowed to rely on or to produce the witness statement and documents which he had purported to file at the tail end of the case and more so without the leave of this court. To allow him to do so would be unfair to the plaintiff as it amounts to stealing a march.
In the upshot I find that the 5th defendant may testify based on the defence on record but he shall not be allowed to produce or even to make reference to the documents filed on 7th October 2024 and for the avoidance of doubt the same are hereby expunged from the record as is the statement.
Orders accordingly.
In the upshot I find that the 5th defendant may testify based on the defence on record but he shall not be allowed to produce or even to make reference to the documents filed on 7th October 2024 and for the avoidance of doubt the same are hereby expunged from the record as is the statement.
Orders accordingly.