[2006] KEHC 3213 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)

Civil Case 1267 of 2001

HUDSON ENTERPRISES LIMITED……….……….........................................................…….. PLAINTIFF

VERSUS

KENYA COLD STORAGE (FOODS) LIMITED & 14 OTHERS……...……………………DEFENDANT

RULING

This is an application by counsel for the plaintiff to cross-examine one Wilfred Nyasimi Oroko on his affidavit sworn on 5. 6.2002. This is an affidavit in response to the affidavit of one Rosemary Elizabeth Marr sworn on 16. 4.2002 in support of an application for leave to amend, injunction and for an order setting aside appointment of the 14th and 15th defendants as Receivers and Managers of the 2nd defendant. The application has been made under Order XVIII Rules 2 (1) and (8) of the Civil Procedure Rules.

It appears from submissions made to me by counsel for the plaintiff that the main reasons for the application are that the 14th and 15th defendants have acted with male fides and have not sworn their own affidavits and the only way to determine the truth of what the said Wilfred Nyasimi Oroko has deponed to in his affidavit is through cross-examination. According to the plaintiff’s counsel, the said Oroko has denied the entire claim of the plaintiff on behalf of others and has deponed to facts that he should not have. He has further referred to documents about which the plaintiff’s counsel desires to cross-examine him upon.

Reliance was placed upon the case of Comet Products UK Ltd –vs- Hawkex Plastics Ltd and another (1971) 1 All ER 1141 for the proposition that the court has a discretion whether or not to allow cross-examination on an affidavit and that it is only in very exceptional cases that cross-examination of a deponent on his affidavit can be declined. For the same proposition reliance was placed upon the case of Garvin –vs- Domus Publishing Ltd [1989] 2 All ER 344.

Further reliance was placed upon the case of Gandhi Brothers –vs- H.K. Njage: HCCC No.1330 of 2001 (UR) for the proposition that conflict in affidavit evidence can only be resolved by cross-examination. In counsel’s view that is the position in the case at hand. There was yet further reliance placed upon the Court of Appeal decision in Jubilee Insurance Company –vs- Benson Owenga Anjere: Nairobi C.A. No.170 of 1995 where their Lordships suggested that cross-examination of a deponent on his affidavit was preferable to striking out paragraphs of the offending affidavit.

Finally reliance was placed upon the decisions in In re Smith and Fawcett Limited [1942] 1 CH.304 and Surgipharm Limited – vs- Aksher Pharmacy Limited and Another: Nairobi HCCC No.295 of 2004 (UR) for the preposition that where mala fides are alleged in an affidavit cross-examination of the deponent of the affidavit should be demanded.

In opposition to the plaintiff’s application, it was contended for the 13th – 17th defendants that the application to cross-examine Oroko on his affidavit has come rather too rate in the day. It was the view of counsel for the 13th – 17th defendants that since the filing of the said affidavit on 5. 6.2002 the plaintiff has not filed a responding affidavit. There is in the premises nothing controversial in the said affidavit to warrant the cross-examination sought. In counsel’s view the reasons advanced for the application are irrelevant to the application for the cross examination of Oroko on his affidavit which affidavit is a short 10 paragraph affidavit and does not cover the area of interest of the plaintiff.

Reliance was placed upon the case of Kibaki –vs- Moi and 2 others Election Petition No.1 of 1998 (UR) for the proposition that cross-examination of a deponent on his affidavit cannot be hinged on matters not contained in the affidavit and that general cross-examination can be oppressive.

Further reliance was placed upon the case of Joyce Muthoni Nottingham & 2 others – vs- Pheroze Nowrojee: Nairobi HCCC No. 1305 of 2000 where the decision in the Kibaki –vs- Moi (Supra) was applied.

The defendant’s counsel was also of the view that if the cross-examination sought is allowed, the court will be trapped into a full hearing at this interlocutory stage which should not be allowed. Reliance was placed upon the case of Oguk and Others –vs- Westmont Power Kenya Limited and Another: [2003] UR 5259 for this proposition. To avoid this trap counsel for the 13th – 17th defendant urged that the plaintiff’s application be dismissed.

Counsel distinguished the case of Gandhi Brothers –vs- H. K. Njage (Supra) on the basis that in that case there were conflicting affidavits and issues of fact were in dispute which is not the case here where the plaintiff filed no response to the affidavit in question.

With respect to alleged mala fides, counsel argued that it is not crystal clear as to who is guilty of the mala fides especially as the plaintiff did not file a responding affidavit to Oroko’s affidavit of 5/6/02.

Finally counsel for the 13th – 17th defendants made a strong plea that there has been in ordinate delay in the prosecution of the plaintiff’s application and the suit and the cross examination sought will occasion further unnecessary delay.

Having considered the above submissions, and the authorities relied upon, I take the following view of the matter. The plaintiff’s counsel seeks to cross examine Wilfred Nyasimi Oroko on his affidavit sworn and filed on 5. 6.2002. Several allegations have been made as the foundation for the application including, bad motive, want of good faith, refusal to furnish certain documents, legality of the appointment of the 14th, 15th, 16th and 17th defendants as receivers, fraud, authority to make the affidavit, authenticity of the facts deponed to in the said affidavit, legality of certain documents and conflict with other affidavits on the record. In different circumstances the grounds put forward by counsel for the plaintiff would entitle him to the cross-examination sought. However, the circumstances of this case stand alone. This suit was filed in the year 2001. We are in the 5th year since filing of the same. The affidavit in question was sworn and filed on 5th June, 2002 nearly 4 years ago. The plaintiff does not appear to have responded to that affidavit by a supplementary or further affidavit. The conflict alleged is with respect to other affidavits on the record. The other complaints made against the affidavit are the same complaints laid against the 13th, 14th 15th, 16th and 17th defendants in the further reammended plaint. It would appear to me that the cross-examination being sought may amount to a trial of the main action in this interlocutory application. This with respect cannot be permitted. The hearing of the plaintiff’s interlocutory application has in my view been inordinately delayed. A judicial system which permits an urgent interlocutory application to remain undetermined for such a long time is not a healthy system.

Order XVIII Rule 2(1) of the Civil Procedure Rules reads:-

“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.”

Under this provision the right to cross examine a deponent on his affidavit is discretionary. Like all judicial discretions it has to be exercised judicially and not whimsically or capriciously. In the case at hand the circumstances are such that I have to decline the application. All the complaints made by the plaintiff can be established by means other than cross-examination of Wilfred Nyasimi Oroko. I have read all the cases cited by both counsel. They all dealt with different circumstances and need not be analysed in this application.

In the end the plaintiff’s application to be allowed to cross-examine Wilfred Nyasimi Oroko on his affidavit sworn and filed on 5. 6.2002 is declined with costs.

Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 14TH DAY OF MARCH, 2006.

F. AZANGALALA

JUDGE

14/3/2006