[2015] KEHC 4033 (KLR)
The court held that the veracity of the affidavits on record, particularly the affidavit of service, could only be ascertained through the cross-examination of the process server. Determining the application without first resolving the issue of cross-examination would prejudice the parties, as it would be difficult...
Source-derived case information.
- Citation
- [2015] KEHC 4033 (KLR)
- Parties
- Plaintiff: Hass Petroleum Limited; Defendant: A.O. Basid Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 9 of 2015
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application Regarding Cross Examination of Process Server
- Outcome
- Application for cross-examination of process server granted.
- Judges
- A Mabeya
- Legal Topics
- Service of Process, Affidavit of Service, Cross Examination, Default Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hass Petroleum Limited
Plaintiff
A.O. Basid Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application Regarding Cross Examination of Process Server
Legal Issues
- 1 Whether the process server who effected service of summons should be summoned for cross-examination to ascertain the veracity of the affidavit of service.
- 2 Whether the application can be determined without first resolving the issue of cross-examination of the process server.
Ratio Decidendi
The court held that the veracity of the affidavits on record, particularly the affidavit of service, could only be ascertained through the cross-examination of the process server. Determining the application without first resolving the issue of cross-examination would prejudice the parties, as it would be difficult to determine which affidavit to believe. Therefore, in the interests of justice, the court granted the prayer to summon the process server for cross-examination before considering the other prayers in the application.
Court Disposition
Application for cross-examination of process server granted.
Orders
- The process server Willis Agayi who swore the affidavit of service dated 13th October, 2014 is to be summoned to appear before court for cross-examination on his affidavit of service.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 9 OF 2015
(FORMERLY COMMERCIAL AND ADMIRALTY SUIT NO. 362 OF 2014)
HASS PETROLEUM LIMITED...........................................PLAINTIFF
VERSUS
A.O. BASID LIMITED.....................................................DEFENDANT
R U L I N G
By a Motion on notice dated 12th January, 2015, the Defendant sought several prayers including a prayer that the process server who effected service of Summons in this matter be summoned for purposes of cross-examination.
The application was fully canvassed by way of written submissions which were highlighted on 23rd March, 2015 by learned Counsel. Having perused the Affidavits on record, I note that the entire application cannot be determined without first considering the prayer for the cross-examination of the process Server as sought in Prayer No. 6 of the Motion. The veracity of the averments in the various Affidavits on record can only be ascertained upon cross-examination of the Process Server. To determine the application in the current form will cause prejudice to the parties in that it will be difficult to ascertain which Affidavit to believe and the basis thereof.
In this regard, it was imperative that the prayer No. 6 should have been canvassed first before the rest of the prayers are canvassed. Accordingly, for the interests of justice I grant that prayer and will direct that the Process Server Willis Agayi who swore the Affidavit of Service of 13th October, 2014 that was the basis of the judgment in default, be summoned to appear before court for cross-examination on his said Affidavit of Service. This will enable the Plaintiff defend its Judgment and the Defendant establish whether or not it was served with the process that culminated in the Judgment of 16th December, 2014.
It is so ordered.
DATED and DELIVERED at Nairobi this 5th day of June, 2015.
................................
A MABEYA
JUDGE