[2016] KEHC 1653 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL MISC. APPL. NO. 158 OF 2016

ARISON EXPORT IMPORT LIMITED.............................................................1ST APPLICANT

HUELANDS LIMITED ...................................................................................... 2ND APPLICANT

V E R S U S –

HARIT SHETH TRADING AS HARIT SHETH ADVOCATES.....................1ST RESPONDENT

HIGHBURY CONSULTING SERVICES INTERNATIONAL LIMITED ...... 2ND RESPONDENT

RULING

1) When the Originating Summons dated 11. 04. 2016 came up for hearing, Mr. Odera, learned advocate for the 2nd respondent, beseeched this court to summon one Francis M. Mburu to be cross-examined on certain averments he made in his affidavit sworn on 11. 4.2016 and filed in support of the Originating Summons. The learned advocate based his oral application on Order 19 of the Civil Procedure rules. It is the argument of Mr. Odera that the exercise of cross-examination will assist this court to determine the purpose of the professional undertaking made by Harit Sheth T/A Harit Sheth advocates the 1st respondent herein.

2) Mr. Odera pointed out that a critical look at ground no. 3 of the Originating Summons, will require that Mr. Francis Mburu to be cross-examined.

3) The learned advocate also invited this court to peruse annexures F.M.M.2 and 3 attached Mr. Francis Mburu’s affidavit before making its decision over the oral application. It is said the cross-examination will assist this court to determine the basis of engaging the services of the 2nd respondent.

4) Mr. Nyamai learned advocate for the applicants strenuously opposed the oral application. He argued that the application was made oustensively to further delay the conclusion of this matter. Mr. Nyamai stated that there was no justification to subject Mr. Francis Mburu to cross-examination yet his averments are clear in its content and meaning.

5) I have considered the rival oral submissions of learned counsels.

I have further perused the material cited by learned counsels. In the case of Law Society of Kenya = vs = Faith Waigwa & 7 others Civil Case no. 196 of 2015this court restated the principles to be considered before granting an order to summon a deponent for cross-examination in part as follows:

“This court underscores the importance of cross-examination both in substantive hearing and in interlocutory application are the same. They are two fold:

First, to bring out desirable facts of the case modifying the

examination in chief or establishing the cross-examiner’s own case. Cross examination therefore has for its first utility, the extraction of the remaining qualifying circumstances of the testimony given by the witness in his examination in chief.

The second object of cross-examination is to impeach the

credit of the witness. In essence, it is meant to bring out facts which go to diminish or impeach the trustworthiness or credit of the witness. Some of the facts can be obtained only from the witness, particularly those which concern his personal conduct and his sources of knowledge for the case at hand.

A witness may be asked questions tending for example to expose the errors, omissions, contradictions and improbabilities in his testimony. Some questions too, may be asked to test the veracity of the witness and to even point out that the witness had made previous statements inconsistent with his present testimony or that he is biased or partial in relation to the parties in the case.”

6) I have carefully considered the relevant paragraphs of the affidavit of Francis Mburu, which Mr. Odera has applied for Mr. Francis Mburu to be summoned to be cross-examined.

7) The averments and annexures attached to the supporting affidavit of Mr. Francis Mburu do not in any way raise any doubt nor diminise the trustworthiness or credit of the deponent. It would appear the deponent has laid bare what his case is. I find the averments therein can easily be answered by affidavit evidence. In short, the oral application does not meet the criteria restated herein above.

8) In the end, I decline to grant the order requested by Mr. Odera.

The Originating Summons should proceed for hearing as scheduled. Each party to meet his own costs of the application.

Dated, Signed and Delivered in open court this 26th day of October, 2016.

J. K. SERGON

JUDGE

In the presence of:

.............................................................. for the Appellant

............................................................... for the Respondent