Wakilii

Air Import v The Newson Aeronautical Corporation (Miscellaneous Civil Application No. 162 of 1955)

East African Court of Appeal · [1955] EACA 2 · 1955 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to appoint an examiner to take evidence of a witness in Kenya for use in civil proceedings pending before the Court of the First Instance of Geneva, Switzerland
Decision
Application granted with directions for taking evidence and transmitting depositions to Swiss court

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Court held that in the absence of a certificate from an accredited diplomatic agent, an affidavit from the applicant's agent was sufficient evidence that a civil suit was pending before the Swiss court. A commission rogatoire requires a convention permitting reciprocal simplified procedure; absent such convention, the document must be treated as letters of request. The application was competent despite not being transmitted through diplomatic channels, as the party obtaining the letters could instruct an agent in Kenya. The Court could name an examiner where none was specified and appointed the Resident Magistrate, Nairobi, directing that depositions be forwarded through diplomatic channels after examination.

Outcome

Application granted with directions for taking evidence and transmitting depositions to Swiss court

Facts

A civil and commercial suit was pending before the Court of the First Instance of Geneva, Switzerland. The defendant obtained a commission rogatoire addressed to the competent authority at Nairobi to administer an oath to a named witness and record answers to questions in chief and cross-examination. No certificate from an accredited diplomatic agent under section 2 of the Foreign Tribunals Evidence Act, 1856 was obtained, nor did the document come through diplomatic channels. The defendant sent the document to the Swiss Consul at Tanga, Tanganyika, who passed it to an advocate in Nairobi. The advocate applied to the Court by summons in chambers, exhibiting the commission rogatoire and seeking appointment of an examiner. No examiner was named in the document. The applicant admitted no convention relating to taking of evidence existed between Switzerland and Kenya.

Issues

  1. Whether the Court can accept an affidavit by an agent in Kenya as sufficient evidence of a pending foreign suit in the absence of a certificate by an accredited diplomatic agent under section 2 of the Foreign Tribunals Evidence Act, 1856.
  2. Whether a commission rogatoire is competent in the absence of a convention between Switzerland and Kenya.
  3. Whether the application is competent when the letters of request were not transmitted through the diplomatic channel.
  4. Whether the Court can name an examiner when no examiner is named in the letters of request or the summons.
  5. What procedure should be followed after the examination is completed.

Orders

  • Application granted.
  • Resident Magistrate, Nairobi, appointed as examiner.
  • Examiner to issue summons to the witness.
  • Counsel for applicant to put questions to the witness.
  • Procedure to be in accord with Rules of Court, Part IX.
  • After examination, depositions to be handed by examiner to Registrar.
  • Registrar to forward depositions through diplomatic channel to Swiss Court with certificate and note of fees.

Rules and key headnotes

Evidence — Foreign Tribunals — Proof of Pending Suit — Sufficiency of Agent's Affidavit
In the absence of a certificate from an accredited diplomatic agent of a foreign power, a court may accept an affidavit from an agent instructed by the foreign consul as sufficient evidence to prove that a civil and commercial suit is pending before the foreign court and that the foreign court is desirous of obtaining testimony of a witness within the jurisdiction, as provided by section 2 of the Foreign Tribunals Evidence Act, 1856.
Civil Procedure — Letters of Request — Commission Rogatoire — Requirement of Convention
A commission rogatoire is appropriate only where a convention subsists permitting by reciprocity such simplified procedure. In the absence of such a convention between the Imperial Government and the foreign state, or notification applying such convention to the territory, the court must regard the document as letters of request rather than a commission rogatoire.
Civil Procedure — Letters of Request — Transmission — Competence of Party's Agent
Although letters of request are frequently transmitted through the diplomatic channel, it is competent for the party obtaining the letters to instruct an agent in the local jurisdiction to obtain the evidence, and such agent may apply in chambers for the appointment of an examiner.
Civil Procedure — Letters of Request — Appointment of Examiner — Court's Power
Where no examiner is named in the letters of request or in the summons, the court has power to name an examiner to take the evidence of the witness.

Legislation cited (2)

Full judgment

↓ Download PDF

The original judgment as reported. Read the original PDF before relying on any passage.

Air Import v The Newson Aeronautical Corporation (Miscellaneous Civil Application No. 162 of 1955) [1955] EACA 2 (1 January 1955)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.