By Musyoki Kimanthi
Q: I have been paying rent to my landlord through M-banking for the last two months, but he now threatens me with eviction for allegedly not paying rent. He would sms me back the two times I sent the money through my phone to acknowledge receipt of the same, but there is no hard record for it. I have written to my mobile phone service provider for details of the exchanges between myself and the landlord but no response is forthcoming. Can I compel them to attend court to give evidence in my favour if the matter ends up in court?
A: Evidence has long been regarded as being of central importance to the law. There is a consensus among legal scholars and judges that judgments must rest, not only on hunches and intuitions, but most importantly on relevant evidence. Relevant evidence means having any tendency to make the existence of any fact that is of consequence to the determination of the case more probable or less probable than it would be without the evidence.
In systems of proof based on the English Common Law tradition like ours, almost all evidence must be sponsored by a witness. This is a person who has sworn or solemnly affirmed to tell the truth. All persons are presumed to be qualified to serve as witnesses in trials and other legal proceedings. Equally, all persons are also presumed to have a legal obligation to serve as witnesses if their testimony is sought. This is a civic duty that everyone should be willing to perform to help courts dispense justice.
However, certain categories of people are exempted by legal rules from the obligation to give evidence while others are outright disqualified from serving as witnesses under certain circumstances. These privileges are designed to protect socially valued types of confidential communications. Examples are the marital secrets privilege-between spouses, advocate-client privilege and doctor-patient privilege among others.
Mobile phone service providers may argue that they have a duty to keep details of their customers’ communications confidential and not disclose that to the public.
However, this argument may not hold. These communications do not fall under the privileged or classified categories. Whatever the excuse there may be for not willing to appear in Court to give evidence, it may actually not hold altogether.
The law states that a witness shall not be excused from answering any question as to any matter relevant to the case in issue in any court proceeding.
Having stated the above, a question follows; how then does one get these people to appear in court? In civil proceedings, any party to a suit who requires attendance of a witness may apply to the court for summons directed at the persons whose attendance is required to appear in court either to give evidence or to produce documents in their power and control.
The same procedure applies in criminal matters. If without sufficient excuse a witness does not appear in obedience to the summons, the court, on proof of proper service of the summons on the witness at a reasonable time before, may issue a warrant to bring him before the court at the time and place as shall be specified.
The court may also issue a warrant for the arrest and production of a witness in the first instance-even before he has disobeyed summons to appear — if it is satisfied by evidence on oath that the person will not attend unless compelled to do so. In cases where the evidence is required from a corporation, witnesses summons may be served upon the directors or anyone authorised by the corporation to act on its behalf.
— Readers can send questions to (thelaw@eastandard.net)
