[2004] KEHC 2013 (KLR)
The court held that the relevant legal framework for cross-examining a deponent of an affidavit of service is found under Order V of the Civil Procedure Rules, not Order XVIII. Specifically, Order V rule 16 allows the court to examine the serving officer on oath regarding the service of summons, and Order V rule 32...
Source-derived case information.
- Citation
- [2004] KEHC 2013 (KLR)
- Parties
- Plaintiff: Charles Simiyu Musima; Defendant: James Wabwile
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- ? 180 of ??
- Procedural Posture
- Civil Suit / Interlocutory Ruling on Application to Cross Examine Affidavit Deponent
- Outcome
- Application dismissed with costs to the plaintiff.
- Judges
- JK Sergon
- Legal Topics
- Affidavit of Service, Cross Examination, Oral Application, Service of Summons
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Simiyu Musima
Plaintiff
James Wabwile
Defendant
Procedural Posture
Civil Suit / Interlocutory Ruling on Application to Cross Examine Affidavit Deponent
Legal Issues
- 1 Whether an oral application to cross-examine the deponent of an affidavit of service is permissible under the Civil Procedure Rules.
- 2 Which provision of the Civil Procedure Rules governs applications to cross-examine a serving officer on an affidavit of service.
Ratio Decidendi
The court held that the relevant legal framework for cross-examining a deponent of an affidavit of service is found under Order V of the Civil Procedure Rules, not Order XVIII. Specifically, Order V rule 16 allows the court to examine the serving officer on oath regarding the service of summons, and Order V rule 32 requires that any application to cross-examine such a deponent must be made by summons, not orally. Since the defendant's advocate made an oral application rather than a formal application by summons, the application was procedurally defective and could not be entertained. The court therefore dismissed the oral application with costs to the plaintiff.
Court Disposition
Application dismissed with costs to the plaintiff.
Orders
- The oral application by the defendant's advocate to cross-examine the deponent of the affidavit of service is dismissed.
- Costs awarded to the plaintiff.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL SUIT NO. 180 OF 2000
CHARLES SIMIYU MUSIMA …………… PLAINTIFF
VS
JAMES WABWILE ……………. DEFENDANT
R U L I N G
The defendant’s advocate verbally applied to have Raphael Pamba, the deponent of the affidavit of service sworn on 9th July 2002 crossexamined over the affidavit. Mr. Onchiri cited order XVIII rule 2 of the Civil Procedure rules to back up his application.
Mr. Waswa for the plaintiff vehemently opposed the application on the ground that Order XVIII of the Civil Procedure rules do not apply to affidavits of service. He pointed out that the relevant provisions of the law is under Order V rule 16 of the Civil Procedure rules.
I have carefully considered the rivaling submissions. I think I am in agreement with the submissions of Mr. Waswa that when it comes to an application to cross-examine a serving officer, the relevant legal regime is under Order V of the Civil Procedure rules.
Order V rule 16 reads:
“On any allegation that a summons has not been properly served, the court may examine the serving officer on oath, or cause him to be so examined by another court, touching his proceedings and may make such further inquiry in the matter as it thinks fit, and shall either declare that the summons has been duly served or order such service as it thinks fit.”
It is also clear under Order V rule 32 that an application to crossexamine a deponent of an affidavit of service shall be made by summons. There is no room for an oral application unlike the case under Order XVIII rule 8 of the Civil Procedure rules.
Consequently the oral application by Mr. Onchiri for the respondent is dismissed with costs to the plaintiff.
DATED THIS 12th DAY OF March 2004
J.K. SERGON
JUDGE