Automated Summary
Key Facts
The plaintiff, Justina Wamucii Nduhiu (trading as Hebrew Creation), applied for leave to cross-examine the 1st defendant, Kennedy Eboso, on his replying affidavit and a letter annexed to it. The court denied the request, finding no allegations of fraud, dishonesty, or bad faith, and noting that the ownership dispute over goods did not constitute a special circumstance justifying cross-examination at the interlocutory stage. The court directed parties to proceed with written submissions and set a mention date for October 2, 2025.
Issues
Whether the court should grant leave to cross-examine the 1st Defendant on the ownership of disputed goods and the author of a letter annexed to his affidavit.
Holdings
The court denied the Applicant's request to cross-examine the 1st Defendant and the author of the letter annexed to his affidavit. It found no allegations of fraud, dishonesty, forgery, or bad faith, and the ownership dispute did not constitute special circumstances warranting interlocutory cross-examination. The Applicant was directed to address contentious issues via a Supplementary Affidavit and trial proceedings.
Remedies
- Counsel for the parties to identify all pending applications and indicate whether they intend to file further affidavits in respect thereof.
- Notice to issue upon the Applicants.
- All pending applications to be disposed of by way of written submissions. The parties to file and exchange written submissions within fourteen (14) days of each from the date of this Ruling.
- Mention on the matter shall be on the 2nd October, 2025 for the parties to confirm compliance and take further directions.
Legal Principles
The court emphasized that cross-examination of a deponent on affidavit evidence is discretionary and requires special circumstances such as allegations of fraud, mala fides, conflicting affidavits, or the need to determine authenticity. This aligns with precedents in Ahmednasir Abdikadir & Co. Advocates v National Bank of Kenya Limited [2006] 2 EA 6 and Republic v Kenya Revenue Authority Ex-parte Althaus Management [2015] eKLR, which stress that cross-examination should only be permitted when essential for the just resolution of the matter.
Precedent Name
- Republic -vs- Kenya Revenue Authority Ex-parte Althaus Management and Consultancy Ltd
- Ahmednasir Abdikadir & Co. Advocates -vs- National Bank Of Kenya Limited (2)
Cited Statute
Civil Procedure Rules
Judge Name
D.O. Chepkwony
Passage Text
- The court finds that no allegations of fraud, dishonesty, forgery, or bad faith have been raised against the 1st Defendant to justify the invocation of this exceptional procedure. The issue of ownership of the subject goods, while material, does not in itself rise to the level of a special circumstance warranting cross-examination of a party at the interlocutory stage.
- The law has allowed evidence to be proved by way of affidavits under Order 19. But under Rule 2 of the said Order, the court may order a deponent of an affidavit to attend court to be cross-examined. It would appear that where allegations of fraud, mala fides, authenticity of the facts deponed (sic), bad motive among others are raised, cross-examination of a deponent of an affidavit may be ordered. This also extends to where there is a conflict of affidavits on record or where the evidence deponed (sic) to is conflicting in itself. Further, the order for cross-examination is a discretionary order but as is in all discretions, the same must be exercised judiciously and not whimsically. There should be special circumstances before ordering a cross-examination of a deponent on an affidavit. The court must feel that adequate material has been placed before it that show that in the interest of justice and to arrive at the truth, it is just and fair to order cross-examination.
- Cross-examination should only be permitted when it is essential to the just resolution of the matter.