[2006] KEHC 771 (KLR)
The court found that the defendant failed to provide affidavit evidence to justify the need for cross-examination of the plaintiff's deponent. The defendant did not specify any matters that could not be addressed through affidavit evidence. Consequently, the court determined that there was no reason to deny the...
Source-derived case information.
- Citation
- [2006] KEHC 771 (KLR)
- Parties
- Plaintiff: Engineering Manufacturers Limited; Defendant: Marshall-Fowler (Engineers) Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 778 of 2002
- Procedural Posture
- Civil Case / Ruling on Chamber Summons Regarding Directions for Conduct of Originating Summons
- Outcome
- Plaintiff's application granted; case to proceed by affidavit evidence.
- Judges
- MM Kasango
- Legal Topics
- Affidavit Evidence, Originating Summons, Arbitration Clauses, Directions for Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Engineering Manufacturers Limited
Plaintiff
Marshall-Fowler (Engineers) Limited
Defendant
Procedural Posture
Civil Case / Ruling on Chamber Summons Regarding Directions for Conduct of Originating Summons
Legal Issues
- 1 Whether the court should direct that the originating summons proceed on affidavit evidence already on record.
- 2 Whether the defendant is entitled to cross-examine the deponent of the plaintiff's supporting affidavit.
- 3 Whether the dispute between the parties is subject to arbitration under the contractual agreement.
Ratio Decidendi
The court found that the defendant failed to provide affidavit evidence to justify the need for cross-examination of the plaintiff's deponent. The defendant did not specify any matters that could not be addressed through affidavit evidence. Consequently, the court determined that there was no reason to deny the plaintiff's request for the case to proceed on affidavit evidence already on record. The court granted the plaintiff's application for directions, ordering that the case proceed by way of affidavit evidence and be heard in Nairobi for one day, with costs in the cause.
Court Disposition
Plaintiff's application granted; case to proceed by affidavit evidence.
Orders
- This case shall proceed by way of affidavit evidence on record.
- This case shall be heard in Nairobi for one day.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 778 of 2002
ENGINERING MANUFACTURERS LIMITED……….....................…..PLAINTIFF
VERSUS
MARSHALL-FOWLER (ENGINEERS) LIMITED………………DEFENDANTS
RULING
The Chambers Summons dated 30th of May 2006 is brought by the plaintiff. The same is brought under order XXXVI Rules 8A and 12 of Civil Procedure Rules. The application seeks that this court would issue directions for the conduct of this Originating Summons. The application is supported by an affidavit of the Managing Director of the plaintiffs company. In his affidavit he states that it would be reasonable and expedient to proceed with the hearing of the originating summons on the basis of the affidavits that are already on record. That the supporting affidavit has annexed documents which are in issue especially contractual agreement and arbitral clauses. That the present action seeks the court determination on whether on the agreements true construction the applicant and the defendant agreed to refer the dispute to arbitration. The action also seeks a determination whether dispute liable for arbitration has a reason. When the matter came up for hearing the defendants advocate objected to the application by seeking that an order be made for the cross examination of the deponent of the affidavit in support that is Terrence O’Donovan.
The defendant in opposing the order for hearing by affidavit evidence had not filed an affidavit in response to the application showing by affidavit evidence why it is necessary for the court to give an order for cross examination of the deponent of the affidavit. Such an affidavit would have assisted this court to make a determination on whether to order the cross examination. The defendant did not state that the matters which he whishes to cross examine on are incapable of being controverted on the basis of another affidavit. The court therefore rejects the request for cross examination of the deponent. The court therefore finds no reason why the orders sought by the plaintiff should not be granted as prayed. The orders that are hereby granted are as follows:-
1) That this case shall proceed by way of affidavit evidence on record.
2) That this case shall be heard in Nairobi for one day.
3) That the costs of the chamber summons dated 30th of May 2006 shall be in the cause.
MARY KASANGO
JUDGE
Dated and Delivered this 16th day of November 2006
MARY KASANGO
JUDGE