[2022] KEHC 12492 (KLR)

Fairlake Estate Limited v Housing Finance Corporation Limited (Civil Case E683 of 2021) [2022] KEHC 12492 (KLR) (Commercial and Tax) (5 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12492 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Case E683 of 2021

WA Okwany, J

July 5, 2022

Between

Fairlake Estate Limited

Applicant

and

Housing Finance Corporation Limited

Respondent

Ruling

1. This matter did not proceed for hearing on 9th May 2020, to highlight submissions, in respect to the plaintiff’s application dated September 27, 2021, as Mr. Kimani, learned counsel for the defendant, requested for time to peruse the plaintiff’s document and respond to the same. The case was then adjourned to June 22, 2022.

2. On June 22, 2022, Mr. Kimani informed the court that he was ready to proceed with the hearing but that he had on the previous day filed a Notice to Cross Examine the plaintiff’s deponent on the contents of his supporting affidavit. He submitted that the supporting affidavit contains contradicting positions which could only be cleared through the cross examination of the deponent in order to bring out the proper facts of the case.

3. Mr. Kamau, learned counsel for the plaintiff, opposed the Notice to Cross-examine the plaintiff’s deponent and submitted that it was merely intended to delay the finalization of the hearing.

4. Mr. Kamau further submitted that no material or special circumstances had been placed before the court to warrant the exercise of its discretion to order for the cross examination of the plaintiffs deponent.

5. According to the plaintiff, the Notice to Cross examine its deponent was made with the ulterior motive of embarrassing their deponent. It was submitted that the deponent’s affidavit does not contain any factual allegation upon which cross examination can be conducted.

6. I have considered the rival arguments by counsel on the issue of whether or not the plaintiff’s deponent should be cross examined on the contents of his supporting affidavit dated September 27, 2021.

7. Order 19 Rule 2 and 9 of the Civil Procedure Rules stipulates as follows on cross examination of deponents: -2. Power to order attendance of deponent for cross-examination [Order 19, rule 2. ](1)Upon any application, evidence may be given by affidavit, but the court may, at the instance of either party, order the attendance for cross-examination of the deponent.(2)Such attendance shall be in court, unless the deponent is exempted from personal appearance in court, or the court otherwise directs.

9. Procedure [Order 19, rule 9. ]Applications under this Order may by chamber summons or orally in court.

8. A simple reading of the above provisions reveals that the power to grant leave to cross-examine a deponent is at the discretion of the court. This power must however be exercised only in deserving cases where sound basis has been laid and not in a whimsical or capricious manner. In other words, to allow cross-examination on the contents of an affidavit, the Court must be satisfied that the cross-examination is necessary in the interest of justice. (See National Bank of Kenya Ltd & 2others vs Kisumu Paper Mills Ltd[2009] eKLR).

9. In the case of Ashford Muriuki vs Nancy Gatabaki[2013] eKLR the court stated as follows on the conditions under which the court can order for cross examination of a deponent: -“An applicant to cross-examine the deponent of an affidavit must lay a proper basis for such application. He must state which specific paragraphs and allegations in the affidavit in question give rise to the need for cross-examination.”

10. In GGR vs HPS [2012] e KLR it was held:-“The law has allowed evidence to be proved by way of affidavits under Order 19. But under Rule 2 of the said Order, the court may order a deponent of an Affidavit to attend curt to be cross-examined. It would appear that where allegations of matters touching on fraud, mala fides, authenticity of the facts deponed (sic), bad motive among others are raised, cross-examination of a deponent of an Affidavit may be ordered. This also extends to where there is a conflict of Affidavits on record or where the evidence deponed (sic) to is conflicting in itself. Further, the order for cross examination is a discretionary order but as is in all discretions, the same must be exercised judiciously and not whimsically. There should be special circumstances before ordering a cross examination of a deponent on an Affidavit. The court must feel that adequate material has been placed before it that show that in the interest of justice and to arrive at the truth, it is just and fair to order cross examination.”

11. The question that this court must ask is whether, in the present case, sufficient material has been placed before the court which would assist in the exercise of its discretion to order for the cross examination of the plaintiff’s deponent. In answering the question, I have perused the applicants 10 paragraph supporting affidavit dated September 27, 2021 and I note the following facts: -a.Paragraph 1, 2 and 3 of the affidavit contains the introduction/description of the deponent, the fact that he has read and understood the application that is the subject of the supporting affidavit and that he is aware of the commencement of the case and the orders sought.b.At paragraph 4, 5, 6, 7 and 8 of the supporting affidavit, the deponent states that the defendant filed the defence dated 23rd August 2021 and advise that he has received from the plaintiffs advocate on record.c.Paragraphs 9 and 10 contains the deponents averment that the defence ought to be struck out and that the facts contained in the affidavit are true within his knowledge, information and belief.

12. From the above narration of the contents of the subject supporting affidavit I find that there is no averment or statement of fact that would necessitate an order for his cross examination. I note that the defendant did not specify the allegation or paragraph of the supporting affidavit that requires clarification thereby giving rise to the need for cross examination.

13. I am not satisfied that the defendant has made out a case for an order to cross examine the plaintiff’s deponent and I decline to grant the orders sought. I direct that the matter proceeds for the highlighting of submissions in respect to the application dated September 27, 2021.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 5THDAY OF JULY 2022. W. A. OKWANYJUDGEIn the presence of: -Mr. Kamau Karuri and Ronald for Plaintiff/Applicant.Mr. Kimani for the Defendant/Respondent.Court Assistant- Sylvia