[2012] KEHC 4305 (KLR)
The court held that while it retains discretion to allow cross-examination of deponents in constitutional petitions, such discretion should be exercised sparingly and only where necessary for the just determination of the issues. In this case, the petitioner had the opportunity to respond to the respondents'...
Source-derived case information.
- Citation
- [2012] KEHC 4305 (KLR)
- Parties
- Petitioner: Kenafric Industries Ltd; Respondent: Commissioner of Domestic Taxes; Respondent: Commissioner of Investigation & Enforcement; Respondent: Commissioner of Custom Services; Respondent: Kenya Revenue Authority; Respondent: Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 99 of 2011
- Procedural Posture
- Constitutional Petition / Interlocutory Application for Cross Examination of Deponent
- Outcome
- Application for cross-examination of deponent dismissed.
- Judges
- DAS Majanja
- Legal Topics
- Enforcement of Fundamental Rights, Burden of Proof in Constitutional Petitions, Cross Examination of Affidavit Deponents, Tax Assessment Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenafric Industries Ltd
Petitioner
Commissioner of Domestic Taxes
Respondent
Commissioner of Investigation & Enforcement
Respondent
Commissioner of Custom Services
Respondent
Kenya Revenue Authority
Respondent
Attorney General
Respondent
Procedural Posture
Constitutional Petition / Interlocutory Application for Cross Examination of Deponent
Legal Issues
- 1 Whether the court should exercise its discretion to allow cross-examination of the respondents' deponent in a constitutional petition.
- 2 Whether affidavit evidence is sufficient for the determination of alleged breaches of fundamental rights under Articles 40 and 47 of the Constitution.
Ratio Decidendi
The court held that while it retains discretion to allow cross-examination of deponents in constitutional petitions, such discretion should be exercised sparingly and only where necessary for the just determination of the issues. In this case, the petitioner had the opportunity to respond to the respondents' affidavits and to clarify its relationship with the third party companies in question through further affidavit evidence. The court found no compelling reason to depart from the general rule that evidence in constitutional petitions is adduced by affidavit, particularly given the need for expeditious resolution of fundamental rights claims. Accordingly, the application to call viva...
Court Disposition
Application for cross-examination of deponent dismissed.
Orders
- The application to call viva voce evidence and/or to cross-examine Mr Weldon Ng'eno is dismissed.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
PETITION 99 OF 2011
KENAFRIC INDUSTRIES LTD......................................PETITIONER
VERSUS
COMMISSIONER OF DOMESTIC TAXES ...........1ST PETITIONER
COMMISSIONER OF INVESTIGATION &
ENFORCEMENT......................................................2ND PETITIONER
COMMISSIONER OF CUSTOM SERVICES........3RD PETITIONER
THE KENYA REVENUE AUTHORITY......................4TH PETITIONER
THE ATTORNEY GENERAL....................................5TH PETITIONER
RULING
1. This matter came up for directions on 22nd November 2011 when counsel for the petitioner applied to the Court for an order to cross-examine the deponent of 1st to 4th Respondents’ replying affidavits, Mr Weldon Ng’eno sworn on 10th October 2011 and 21st October 2011.
2. Mr Mogeni wishes to cross-examine Mr Weldon Ng’eno on certain aspects of his affidavits particularly relating to third party companies which were subject of investigations. He submits that the Court should, in considering the matter, have a proper appreciation of the petitioner’s connection with the companies, the investigations conducted, whether they were proper or not, and the outcome thereof. It is important, Mr Mogeni submitted, for the Court to have the benefit of the outcome of those investigations in order to determine this matter.
3. Mr Ng’ang’a for the respondents contended that the provisions of Rule 35 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) Practice and Procedure Rules provide for evidence to be adduced by way of affidavit and there being no provision for cross examination or viva-voce evidence, this Court should exercise great circumspection in acceding to the petitioner’s request. Counsel relied on the case of John Mureithi & Others v Attorney General and OthersNairobi Petition No. 398 of 2006 (Unreported).
4. The Court while exercising jurisdiction to hear matters of enforcement of fundamental rights and freedom is engaged in a fact finding mission. It must resolve legal and factual issues just presented to it just as it does while exercising its ordinary jurisdiction. There is no magic in a hearing conducted under Article 22. The obligation of the court to evaluate the evidence before it does not change whether the matter is proved by oral or affidavit evidence. The reason for insisting on affidavits is that such matters concerning fundamental rights and freedoms are required to be dealt with expeditiously as was held by Justice Nyamu in John Mureithi & Others v Attorney General and Others(Supra).The Court, though, retains discretion to take viva-voce evidence or permit cross-examination of deponents and it may give directions to that effect.
5. The issue for consideration is whether I should exercise my discretion in the petitioner’s favour. The petitioner’s case is one for enforcement of fundamental rights and freedoms under Article 22. It is now well established that the petitioner must set out with particularity the right or fundamental freedom alleged to be infringed and how it is infringed by the respondent in respect to it (See Anarita K Njeru v Attorney General No. 1 [1979] KLR 154). In the petition dated 16th May 2011, the petitioner has set out what it alleges are breaches of Article 40 and 47 of the Constitution and it is the burden of the petitioner to prove the alleged breaches by way of affidavit evidence.
6. The respondents have denied the breaches through the two affidavits of Mr Weldon Ng’eno and if they seek to rely on the limitations in Article 24 they bear the burden of doing so in their responses.
7. I have considered the petition and replying affidavits, I do not see the need to call viva–voce evidence or at any rate call for the cross examination of Mr Weldon Ng’eno. My view is fortified by the fact that the provisional assessment letter dated 17th December 2010 from the 4th respondent and which forms the basis of the petitioner’s case, refers to three companies; Lac Wood Enterprises, Everest General Distributors and Datson (K) Ltd has been known to the petitioners and since it is the petitioners case, then it may, if it wishes, comment on its relationship with the companies as part of its burden of proving its case.
8. Furthermore, the petitioner has had the full opportunity to respond to both replying affidavits and detail the nature of its relationship with those companies through its further affidavit.
9. I am afraid, I cannot accede to the petitioner’s request and the application to call viva-voce evidence and or to cross-examine Mr Weldon Ng’eno is dismissed.
DATED and DELIVERED at NAIROBI this 21st day of May 2012.
D.S. MAJANJA
JUDGE
Mr K. Mogeni instructed by Kelvin Mogeni Advocates for the petitioner
Mr N. Nganga instructed by the Kenya Revenue Authority for the 1st to 4th Respondent.