Witness Summonses (Reciprocal Enforcement) Act

914
THE WITNESS SUMMONSES (RECIPROCAL
ENFORCEMENT) ACT 1968
No. 62 of 1968
Date of Assent: 1 1 th December 1968
Date of Commencement: 20th December 1968
An Act of Parliament to provide for the enforcement of wit-
ness summonses issued by courts of certain countries and
for matters incidental thereto and connected therewith
ENACTED by the Parliament of Kenya, as follows :—
1. This Act may be cited as the Witness Summonses
(Reciprocal Enforcement) Act 1968. 2. (1) In this Act unless the context otherwise requires—
"court" means a court of law constituted or established by
or under the law of a country to which this Act applies;
"magistrate" means a Resident Magistrate;
"the Registrar" means the Registrar of the High Court;
"summons" includes any subpoena or other process for
requiring the attendance of any person to give evidence before
a court or to produce any document before a court.

es any subpoena or other process for
requiring the attendance of any person to give evidence before
a court or to produce any document before a court.

(2) Where a power is conferred or a duty is imposed by
this Act upon a magistrate endorsing a summons in accordance
with section 4 of this Act, such power may be exercised and
such duty may be performed by any other magistrate having
jurisdiction over the area of jurisdiction of the magistrate
endorsing the summons. 3. Where the Attorney-General is satisfied that reciprocal
provision has been or will be made by or under the law of
any country for the enforcement of a summons issued by any
court in Kenya, he may, by order published in the Gazette,
declare that this Act shall apply in the case of that country
subject to such conditions, exceptions and qualifications as
may be specified in the order, and thereupon this Act shall
apply accordingly. Short title. Interpretation. Application of
the Act.

qualifications as
may be specified in the order, and thereupon this Act shall
apply accordingly. Short title. Interpretation. Application of
the Act.

915
1968 Witness Summonses (Reciprocal
Enforcement)
4. (1) Where a summons has been issued by a court in
a country to which this Act applies, requiring the attendance
before such court for the purpose of giving evidence or produc-
ing any document in proceedings of a criminal nature pending
before such court by a person who is or is suspected of being
in or on the way to Kenya, the court issuing the summons may
forward the summons together with three copies thereof to the
Attorney-General. (2) On receipt of documents referred to in subsection (1)
of this section the Attorney-General shall forward same to the
Registrar together with a request to cause the summons to be
served on the person to whom it is addressed and stating the
possible whereabouts of such person. (3) On receipt of the summons under subsection (2) of
this section, the Registrar shall forward same together with the
copies thereof to the magistrate within whose area of jurisdic-
tion the person to whom the summons is addressed is or is
suspected of being present.

copies thereof to the magistrate within whose area of jurisdic-
tion the person to whom the summons is addressed is or is
suspected of being present.

(4) Where a magistrate receives a summons under this
section he may, if he is satisfied—
(a) that the summons was issued by a person having law-
ful authority to issue it; and
(b) that adequate provision has been made or will be
made for the payment to the person to whom the
summons is addressed of expenses for his travel to
the court issuing the summons and for his return to
his ordinary place of residence in Kenya, or to the
place where the summons is served upon him under
the provisions of this Act, and for his subsistence
during the journeys and for the period of his stay at
the place where the court issuing the summons is
situate; and
(c) that the provisions of this Act have been complied
with,
endorse such summons and all the copies thereof. (5) An endorsement of a summons by a magistrate under
subsection (3) of this section shall be sufficient authority for
the service of the summons in the manner prescribed in sec. tion 5 of this Act. No. 62
Backing of
summonses .

ection shall be sufficient authority for
the service of the summons in the manner prescribed in sec. tion 5 of this Act. No. 62
Backing of
summonses .

No. 62
Service of
summons. Where witness
cannot be
found. 916
Witness Summonses (Reciprocal 1968
Enforcement)
5. (1) A summons endorsed by a magistrate in accord-
ance with the provisions of section 4 of this Act shall be served
by a police officer or other public officer or other person as
the magistrate endorsing the summons may direct, and shall
be served personally on the person to whom it is addressed by
delivering or tendering to him a copy thereof. (2) The person upon whom a summons is served in
accordance with subsection (1) of this section shall, if so
required by the person serving the summons, sign a receipt
therefor on the reverse of a copy of the summons and the
person serving the summons shall return such copy to the
magistrate who endorsed same, who shall forward same to
the Registrar.

of the summons and the
person serving the summons shall return such copy to the
magistrate who endorsed same, who shall forward same to
the Registrar.

(3) Where the person summoned is a public officer the
magistrate endorsing the summons may send the summons
together with a copy thereof to the head of the department
or division in which the person to whom the summons is
addressed is serving, and such head of department or division
shall, upon the receipt of the summons, cause the summons
to be served in accordance with the foregoing provisions of
this section and shall return a copy of the summons to the
magistrate endorsing same after certifying on the reverse there-
of the date on which and the manner in which the summons
was served, and the magistrate shall forward the copy of the
summons to the Registrar. (4) Every person who serves a summons either in accord-
ance with subsection (2) or subsection (3) of this section shall
make a statutory declaration specifying the date on which and
the manner in which the summons was served and such
declaration shall be admissible in evidence and the statements
made therein shall be deemed to be correct unless and until
the contrary is proved.

uch
declaration shall be admissible in evidence and the statements
made therein shall be deemed to be correct unless and until
the contrary is proved.

(5) Where a summons has been served in accordance with
this section the Registrar shall send to the court issuing the
summons the copy of the summons upon which the person
served has signed a receipt or the copy certified in accordance
with subsection (3) of this section together with a copy of the
affidavit made under subsection (4) of this section. 6. Where the magistrate who has endorsed a summons
is satisfied that the witness cannot be found within the area
of his jurisdiction he shall return the summons to the Registrar

has endorsed a summons
is satisfied that the witness cannot be found within the area
of his jurisdiction he shall return the summons to the Registrar

917
1968 Witness Summonses (Reciprocal
Enforcement)
with a written report to the effect that the person to whom the
summons is addressed cannot be found and containing such
other relevant information as he may think fit, and upon
receipt of the summons and the report the Registrar shall
return the summons to the court issuing the same or, if the
Registrar has reason to believe that the person to whom the
summons is addressed may be found in some other area of
Kenya, send the summons to the magistrate having jurisdiction
over that area. No. 62
Court may make
order excusing
attendance. 7. (1) The person upon whom a summons is served in
accordance with the provisions of this Act may apply to the
magistrate who endorsed the summons for an order excusing
him from compliance with the summons. (2) Every application under subsection (1) of this section
shall be by chamber summons supported by an affidavit or
affidavits specifying the grounds upon which the order is
sought.

section (1) of this section
shall be by chamber summons supported by an affidavit or
affidavits specifying the grounds upon which the order is
sought.

(3) Where an application is made under this section the
magistrate may require the applicant to appear before him to
be examined by him, and may examine any witness or wit-
nesses whom the applicant may wish to call on his behalf. (4) Where an application is made under this section and
the magistrate is satisfied that—
(a) no adequate provision has been made for the payment
to the applicant of expenses for travelling to the
court issuing the summons and for his return to his
ordinary place of residence within Kenya or to the
place within Kenya where he was served with the
summons and for his subsistence during the journeys
and for the period of his stay at the place where the
court issuing the summons is situate; or
(b) such person is too ill to travel to the court issuing
the summons, or that he suffers from a physical or
mental disability which would cause him great hard-
ship to travel to such court; or
(c) the summons was not served upon him until it was too
late for him to travel to the court issuing the same
so as to arrive there by the date specified in the
summons; or

t served upon him until it was too
late for him to travel to the court issuing the same
so as to arrive there by the date specified in the
summons; or

No. 62
The Attorney-
General may
excuse
attendance. Disobedience
of summons. 918
Witness Summonses (Reciprocal 1968
Enforcement)
(d) having regard to all the circumstances it would be
unreasonable to require such person to comply with
the summons,
he may by order excuse such person from complying with the
summons. (5) Every order made under subsection (4) of this section
shall be in writing and contain reasons for the making thereof,
and shall be signed by the magistrate who shall send two
certified copies thereof to the Registrar, and the Registrar shall
forward one copy of such order to the court issuing the
summons. 8. (1) Where the Attorney-General is satisfied that it is
desirable so to do he may, at any time after a summons has
been received by him in accordance with the provisions of
subsection (1) of section 4 of this Act, whether or not the
summons has been served on the person named therein under
the provisions of this Act, direct, by an order under his hand,
that the person named in the summons shall be excused from
complying therewith.

under
the provisions of this Act, direct, by an order under his hand,
that the person named in the summons shall be excused from
complying therewith.

(2) Where an order under subsection (1) of this section
is made before the summons has been served on the person,
no further steps shall be taken to serve the summons. (3) The Attorney-General shall forward a copy of an
order made under this section to the court issuing the
summons. (4) An order under subsection (1) of this section shall not
be subject to review by any court. 9. Any person who has been served with a summons
under this Act and has not been excused from complying
therewith by an order made under section 7 or section 8 of
this Act, shall, if he fails to obey the summons, be guilty of
an offence and liable on conviction to a fine not exceeding
five hundred shillings.