https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7285

ECO v JKOS (Matrimonial Cause E017 of 2024) [2026] KEHC 7285 (KLR) (25 May 2026) (Ruling) Neutral citation: [2026] KEHC 7285 (KLR) Republic of Kenya In the High Court at Nakuru Matrimonial Cause E017 of 2024 JM Nang'ea, J May 25, 2026 Between ECO Applicant and JKOS Respondent Ruling 1.By Chamber Summons dated 4/5/2025 the Applicant prays for orders as hereunder;1.That an order be and is hereby issued for JKOS to appear in person in open court for cross-examination on his affidavit dated 25/3 2025.2.That an order be and is hereby issued for Managing Director, Kenya Power and Lightening Company to serve the Applicant and tender in court Marital Status report between Applicant and Respondent from 28th January 2013 to date of this Application, within 14 days. (sic)3.That the costs of this Application be provided for. 2.The Application is supported by the Applicant’s Advocate’s affidavit purportedly by sworn on 4/5/2025. Among other averments, Paul Mucai Gitau Advocate makes reference to two affidavits shown to have been sworn by the said JKOS and the Applicant on 28/1/2013 which were commissioned by M/s Makori & Associates at Nakuru. The Affidavits are said to have been disowned by the Respondent in his earlier affidavit dated 25/3/2025 yet the Applicant informs Counsel that the two Affidavits were sworn by the parties to this suit as evidence of their marriage so that they could benefit from a medical scheme offered by Kenya Power and Lightening Company Limited, their employer. Counsel fears that the parties are potentially liable for perjury contrary to section 110 of the Penal Code. 3.The Applicant’s Advocate further deposes that the two Affidavits under reference were sworn in support of the parties’ Application for adoption of a child. 4.The Respondent opposes the Application vide his affidavit in reply. He contends that he indeed neither prepared nor signed the two Affidavits in question purportedly dated 28/1/2013. He claims not to recall ever appearing before the stated Commissioner for Oaths to swear the Affidavits which he dismisses as false, misleading and unfounded. 5.The Respondent further denies having been married to the Applicant under Gusii customary law, statute or any other recognized form of marriage in Kenya. Neither does he have any knowledge of the claim of his adoption of a child jointly with the Applicant. It is therefore contended that there is no legal basis for the desired cross-examination, there being no credible evidence linking the Respondent to the subject dispute. 6.Equally, the Respondent thinks that it is unnecessary to compel the Managing Director of Kenya Power & Lightening Company Limited to provide the parties’ purported Marital Status report as that would be intrusive upon privacy rights of its employees like himself. 7.Only the Applicant put in written submissions on the Application. She submits through her Advocates that she has shown compelling reasons for Cross-examination requested for, ( see Judicial Review case, Republic VS Land Adjudication and settlement & 5 others;Nzungila (Ex-parte Applicant) (Judicial Review E001 of 2020)(2025)KEELC 274(KLR)(Environment and Land)(31 January 2025) relied upon)8. Order 19 Rule 2 of the Civil Procedure Rules 2010 is also cited as giving discretion to allow cross-examination on an affidavit in such circumstances.Article 53 of the constitution that protects the interests and welfare of a child such as involved in this matter is also said to necessitate cross-examination of the Respondent. 8.I find that the Application is merited and is allowed. There is, however, no Application or other immediate proceedings before the court in which the Respondent can be cross-examined on the Affidavits in question. The Applicant will be at liberty to conduct the cross-examination during hearing of the Originating Summons herein. 9.The Kenya Power and Lighting Company’s Report craved by the Applicant may also be exhibited at the hearing if a copy is served upon the Respondent.10.I make no order as to the costs of the Application. J. M. NANG’EA, JUDGEJUDGEMENT DATED, SIGNED AND DELIVERED VIRTUALLY THIS 25TH DAY OF MAY 2026In the presence of;The Appellants’ advocate, DR.Gitau -PresentThe Respondents’ Advocate, Mr.Mwangi-PresentThe Court Assistant, Jeniffer.J.M NANG’EA, JUDGE.