https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1558

Kulati v Music Copyright Society of Ltd & 4 others (Cause E113 of 2022) [2026] KEELRC 1558 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1558 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E113 of 2022 BOM Manani, J June 9, 2026 Between Milcah Khakayi Kulati Claimant and Music Copyright Society Of Ltd Respondent and Ncba Bank Limited 1st Garnishee Safaricom Plc Limited 2nd Garnishee Equity Bank (K) Limited 3rd Garnishee Abc Bank Limited 4th Garnishee Ruling Background 1.The Claimant filed the application dated 3rd February 2026 through which it commenced the instant Garnishee proceedings against the various Garnishees mentioned in the cause. Upon being served with the application and Order Nisi, the Garnishees filed affidavits to explain their positions on the matter. The Claimant now prays to cross examine the deponents to the affidavits before the Garnishee proceedings can be determined. It is this request that this ruling relates to. Analysis 2.Order 19 of the Civil Procedure Rules deals with affidavit evidence. Rule 2 thereof provides as follows:-a.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.b.Such attendance shall be in court, unless the deponent is exempted from personal appearance in court, or the court otherwise directs. 3.From the aforesaid provision, it is apparent that the court has the power to order a deponent to an affidavit to attend court to be cross-examined on the contents thereof. However, courts have emphasized that this course should be resorted to only in exceptional circumstances where the applicant has demonstrated that the justice of the case demands that cross-examination be done. As such, a request for cross-examination of a deponent to an affidavit should not be granted as a matter of course. 4.Speaking to this reality, the High Court in the case of APA Insurance Limited v Jennifer Adoyo Oremo [2016] KEHC 1347 (KLR), quoting with approval decisions by other courts, expressed itself on the matter as follows:-‘’Cross-examination on the affidavit is a discretionary power conferred upon the court by the provision of Order 19 Rule 2 of the Civil Procedure Rules. It is not given as a matter of right and therefore any party who wishes to cross-examine a deponent must satisfy the court that there is a good reason for the purpose of examination. In other words a party ought to lay down a proper legal foundation to justify his application for leave to cross-examine the deponent. As the requisite rules recognize the use of affidavits in evidence especially in the course of interlocutory applications, the courts ought not to readily permit cross-examination of the deponent’s affidavits otherwise if the courts become too willing to allow for cross-examination, the already limited time available for applications would be further curtailed to the detriment of the wider interests of justice. Therefore, in order to ensure that no more time than is really necessary is further taken up by cross-examination, it is only in instances where the court is satisfied that the cross-examination is essential in enhancing the course of justice, that the court would allow deponents to be cross-examined. This was held by Ochieng, J. in the case of Ahmednasir Abdikadir & Co. Advocates vs. National Bank of Kenya Limited (2) [2006] 2 EA 6.In fact in Lawson and Anor vs. Odhams Press Ltd. and Anor. (1948) 2 All ER 717, it was held that cross-examination on an affidavit in support of interlocutory application is to be allowed only in special circumstances.’’ 5.In Invesco Assrance Co. Ltd v Commissioner of Insurance & others [2016] KEHC 4750 (KLR), the learned Judge expressed himself on the issue as follows:-‘’With respect to cross-examination on affidavits, cross-examination on the affidavit is a discretionary power conferred upon the court by the provisions of Order 19 Rule 2 of the Civil Procedure Rules. It is not given as a matter of right and therefore any party who wishes to cross-examine a deponent must satisfy the court that there is a good reason for the purpose of examination. In other words a party ought to lay down a proper legal foundation to justify his application for leave to cross-examine the deponent. As the requisite rules recognize the use of affidavits in evidence especially in the course of interlocutory applications, the courts ought not to readily permit cross-examination of the deponent’s affidavits otherwise if the courts become too willing to allow cross-examination, the already limited time available for applications would be further curtailed to the detriment of the wider interests of justice. Therefore, in order to ensure that no more time than is really necessary is further taken up by cross-examination, it is only in instances where the court is satisfied that the cross-examination is essential in enhancing the course of justice, that the court would allow deponents to be cross-examined.’’ 6.I have considered the Claimant’s request to cross-examine the affiants to the Garnishees’ affidavits in the context of the aforesaid principles and the objections raised by the Garnishees. According to the Garnishees, the affidavits filed by them explain in clear terms the positions obtaining in respect of the accounts under consideration and there is no reason why the affiants should be subjected to cross-examination. The Judgement Debtor seems to express a similar view. 7.A perusal of the Claimant’s affidavit and further affidavits does not provide a cogent justification for the request to cross-examine the affiants to the impugned affidavits. The impugned affidavits have not presented any material which are unclear to require elaboration through cross-examination. As such, the court is not satisfied that the Claimant has laid a firm basis for the request to cross-examine the deponents to the affidavits. 8.Importantly, the court’s directions on 18th February 2026 essentially discharged Garnishee number 2 from the proceedings once it complied with the order which required it to pay to the Claimant the sum of Ksh. 75,000.00 from the account held by this Garnishee on behalf of the Respondent. This order can only be vacated through an appeal or an application for review. Determination 9.The upshot is that the court declines the request to cross-examine the affiants to the affidavits filed by the Garnishees. 10.The Garnishee proceedings to be determined on the basis of the affidavit evidence on record and submissions by the parties without more. DATED, SIGNED AND DELIVERED ON THE 9TH DAY OF JUNE, 2026B. O. M. MANANIJUDGEIn the presence of:…………….for the Claimant…………….for the Respondent……………..for the 1st Garnishee………………for the 2nd Garnishee………………for the 3rd Garnishee……………..for the 4th GarnisheeOrderIn light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.