[2009] KEHC 3826 (KLR)
The court held that while cross-examination on affidavit at the interlocutory stage is permissible, it must not extend to issues that are properly reserved for trial. The determination of the specific issues and the extent of cross-examination should be left to the judge hearing the substantive application. The...
Source-derived case information.
- Citation
- [2009] KEHC 3826 (KLR)
- Parties
- Plaintiff: Ahmed Noorani; Defendant: Joyce Akinyi Ochieng
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 319 of 2008
- Procedural Posture
- Civil Case / Interlocutory Application Ruling
- Outcome
- Directions on cross-examination deferred to the judge hearing the application; costs in the cause.
- Legal Topics
- Cross Examination, Affidavit Evidence, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ahmed Noorani
Plaintiff
Joyce Akinyi Ochieng
Defendant
Procedural Posture
Civil Case / Interlocutory Application Ruling
Legal Issues
- 1 Whether Onesmus Githinji may be cross-examined on his affidavit at the interlocutory stage.
- 2 To what extent cross-examination at this stage should be permitted.
Ratio Decidendi
The court held that while cross-examination on affidavit at the interlocutory stage is permissible, it must not extend to issues that are properly reserved for trial. The determination of the specific issues and the extent of cross-examination should be left to the judge hearing the substantive application. The court declined to give directions at this stage, instead deferring the matter to the judge who will preside over the application by chamber summons. Costs of the directions were ordered to be in the cause.
Court Disposition
Directions on cross-examination deferred to the judge hearing the application; costs in the cause.
Orders
- The extent and issues for cross-examination of Onesmus Githinji to be determined by the judge hearing the chamber summons application.
- Costs of these directions shall be in the cause.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 319 of 2008
AHMED NOORANI ......................................................PLAINTIFF
V E R S U S
JOYCE AKINYI OCHIENG .....................................DEFENDANT
R U L I N G
On 15th December, 2008 the Plaintiff’s learned counsel sought leave to cross-examine one Onesmus Githinji, Esq. upon his affidavit sworn on 11th December, 2008. That affidavit was sworn in response to certain issues raised in the Plaintiff’s supplementary affidavit sworn and filed on 2nd December, 2008, particularly in paragraphs 5 and 6 thereof. In his said affidavit, Mr Githinji deponed, inter alia, that no sale agreement between the parties herein was ever executed, and further that the Plaintiff was not his (Mr. Githinji) client in the sale transaction pleaded in this suit.
The Defendant’s learned counsel did not have any objection to the cross-examination of Mr. Githinji, and on 29th April, 2009 he produced him before court for such cross-examination. But when the Plaintiff’s learned counsel enumerated the specific issues upon which he wished to cross-examine, the Defendant’s learned counsel was alarmed that Mr. Githinji might be cross-examined upon matters that ought properly to await trial of the action.
Obviously, Mr. Githinji should not be cross-examined upon issues, or to such depth or extent, as would belong to trial of the action. But the extent to which Mr. Githinji should be cross-examined at this interlocutory stage should be left to the Judge seized of the application by chamber summons dated 24th July, 2008. Such cross-examination will be in the course of hearing the said application.
I therefore cannot at this stage give directions as to the specific issues upon which Mr. Githinji may be cross-examined, or the extent of such cross-examination. Let that be handled by the Judge hearing the application, and at the time of such cross-examination. Those will be the directions of the court. Costs of these directions shall be in the cause.
DATED AT NAIROBI THIS 7TH DAY OF MAY, 2009
H. P. G. WAWERU
J U D G E
DELIVERED THIS 8TH DAY OF MAY, 2009