A party cannot compel a witness by asking nicely. The District Court has the same machinery as the National Court, in simpler form: a summons, expenses, and a warrant if the summons is disobeyed. The National Court’s equivalent, the subpoena, is described in how do I summon a witness.
The summons to a witness
A Magistrate may issue his summons to a person within his jurisdiction who is likely to have material evidence in relation to the matter of an information or complaint, requiring him to appear before a Court at a time and place specified in the summons to testify what he knows concerning that matter.
Section 45(1)(b) allows a summons to give evidence or to produce documents to be signed and issued by the Clerk as well as a magistrate, so the ordinary route is to ask at the registry. Form 19 is the summons to give evidence and Form 20 the summons to produce documents. Under section 71 a magistrate who can summon a witness can also compel him to bring and produce all documents in his possession or power, but section 71(2) provides that a person is not bound to produce a document not specified or sufficiently described in the summons, nor one he would not have to produce on a subpoena in the National Court. That preserves privilege.
Service and expenses
Section 67 applies the service rules for a defendant’s summons: personal service, or service at the last known abode on an apparent inmate aged 16 or over, at least 72 hours before the hearing, proved by affidavit endorsed on the original. Section 260(1)(f) provides that witnesses who attend are allowed their costs whether or not they are examined, up to the prescribed rate, and section 264 caps the costs and mileage at the amounts in Schedule 5 of the Regulation. See witnesses’ expenses. The Manual’s advice is to tender the expenses when the summons is served, because a fine for non-attendance depends on it.
If the witness does not come
(1) 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, recoverable as a penalty on summary conviction.
(2) In addition to, or instead of, the fine, the Court may issue its warrant to bring the person before the Court to testify at a time and place specified in the warrant.
The Manual notes that in many parts of the country the requirement to tender expenses is not practicable, but the Act makes it a condition of the fine in non-indictable cases, so a party who skipped it will get the warrant but not the fine. Section 91 adds that a witness summoned for a hearing that is adjourned must attend the adjourned hearing without a further summons, and is entitled to additional expenses for doing so.
A warrant in the first instance
If a Magistrate is satisfied by evidence on oath that it is probable that a person whose evidence is desired will not attend to give evidence without being compelled to do so, he may issue a warrant in the first instance instead of issuing a summons.
This is for the witness who has said he will not come, or who is about to disappear. A witness brought by warrant may be discharged on bail on recognizance under section 80 to appear when required, and a witness in a committal who has given material evidence may be bound over under section 111 to attend the National Court trial. See can a witness be held in custody.
The witness comes but will not speak
Section 70 allows the Court to adjourn for up to eight days and commit to custody a witness who, without lawful excuse, refuses to be sworn, to answer a question or to produce a document, and to repeat the commitment until he complies. Section 277(2) makes wilful prevarication an offence. See what happens if a witness refuses to answer or lies.
A witness about to leave the country
Where a Magistrate is satisfied by evidence on oath that a person is able to give material evidence or produce relevant documents relating to a complaint pending before a Court, and is likely to be absent from the country when the case comes on for hearing, the Magistrate may, on the application of a party, order that the evidence be taken or the documents produced before him at any time before the hearing, after reasonable notice to the other party.
Section 74 provides that the deposition so taken is signed by the witness and the magistrate, delivered to the Clerk, and may be read at the hearing if the Court is satisfied the witness is out of the country. Note that section 72 speaks of a complaint, so it is a civil-case power; in a criminal case the equivalent is the written statement served under section 94 in committals, and for a summary trial the witness must be brought before the hearing date is fixed.
Summary
| Step | Provision |
|---|---|
| Obtain a summons to give evidence or produce documents from the Clerk or a magistrate | ss 45, 66, 71 |
| Serve it personally, at least 72 hours before the hearing, and tender expenses | ss 47, 67, 264 |
| File the affidavit of service | s 47(2) |
| If the witness does not appear: fine and/or warrant | s 68 |
| If the witness is unlikely to come: warrant in the first instance | s 69 |
| If the witness is leaving the country (civil case): evidence taken early | ss 72–74 |
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.