A witness who takes a day off work, pays a PMV fare and waits outside the courtroom is entitled to something. The Act says how much, and who is supposed to pay it.
The entitlement
The costs and mileage that may be allowed for the attendance of witnesses to give evidence before a Court shall be such amounts, not exceeding the prescribed amounts, as the Court allows.
Travelling: (1) to every witness who travels by ship, air or vehicle, the amount actually and properly paid for fares going to and returning from the Court; (2) where a witness drives a private vehicle, not more than K0.25 per kilometre necessarily travelled. Attendance: (3) witnesses’ expenses, including attendance of plaintiff and defendant, a sum representing the salary, wages or income actually lost and accommodation expenses, not exceeding K85.00 per day.
The Schedule applies to all proceedings, civil and criminal. It covers the parties themselves as well as their witnesses, so a complainant who loses a day’s wages to attend can include that in the costs claimed.
Attendance is enough
Section 260(1)(f) provides that the costs of persons present to give evidence or produce documents, whether they have been examined or not, are allowed to them unless the Court otherwise orders, whether or not they were summoned, but the allowance for attendance shall not exceed the highest prescribed rate. A witness who came and was not called because the case settled or the other side conceded still qualifies. Section 260(1)(g) requires the Court to fix the amount, so the party claiming should come with the figures: fares, distance, the witness’s daily wage, and any accommodation receipt.
Who pays, and when
| Stage | Who pays |
|---|---|
| When the summons is served (civil and simple offences) | The party calling the witness tenders reasonable expenses: without this, s 68 gives no penalty for non-attendance |
| At the hearing | The party calling the witness pays the Schedule 5 amount; the Court fixes it under s 260(1)(g) |
| On judgment | The successful party recovers what it paid as part of the costs order against the loser |
| Police prosecutions | The State bears the expenses of prosecution witnesses; the informant does not tender conduct money and s 68 does not require it for indictable offences |
| Adjournment caused by a party | That party may be ordered under s 260(1)(e) to pay the other side’s wasted witness expenses |
Conduct money and the section 68 penalty
If a person summoned as a witness refuses or neglects to appear, and no just excuse is offered, then after proof on oath that the summons was duly served and, except in the case of indictable offences, that a reasonable sum was paid or tendered to him for his costs and expenses of attendance, the Court may impose on him in his absence a fine not exceeding K200.00.
This is the practical teeth of the entitlement. A civil party who serves a witness summons without tendering fares and a day’s allowance cannot have the witness fined for staying away, though the Court may still issue a warrant under section 68(2) to bring the witness. The safe course is to tender the Schedule 5 amount with the summons and record it in the memorandum of service. See summoning a witness.
Particular witnesses
A police officer giving evidence in the course of duty is paid by the State and claims nothing. A doctor or other professional who attends to prove a report is a witness like any other under Schedule 5: lost income up to K85 a day, which will not reflect a professional’s rate. There is no separate expert’s fee in the Regulation. A party who needs an expert to attend should negotiate the fee privately and understand that only the Schedule 5 amount is recoverable from the other side. Where a medical report can be tendered without the doctor, under section 102 in committals or by consent at a summary hearing, that avoids the cost.
Committals
Witnesses at a committal are usually not called; their statements are served under section 94. Where a witness is examined under section 96 or 102, or bound over under section 111 to attend the National Court trial, the expense of attending the trial is a National Court matter. Section 68 exempts indictable cases from the conduct-money requirement, so a defence witness summoned to a committal can be fined for non-attendance without expenses having been tendered.
How to claim
Bring the figures to court. The party asks, when the decision is given, for costs including witnesses’ expenses, states each witness’s fare, mileage and lost wages, and the magistrate fixes a total under section 260(1)(c) and (g) that goes into the order. Once in the order the sum is recoverable by execution under section 260(1)(d) with the rest of the judgment. A witness who was not paid by the party who called him has a claim against that party, not against the Court or the other side. See costs in the District Court.
The District Courts Act and Regulation are not on PacLII; both are on vLex (Act, Regulation).
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.