[2017] KEHC 418 (KLR)
The court held that the fact that Mr. Bikuri was no longer in the service of the respondent did not preclude cross-examination, as the affidavit was sworn in his official capacity and the office he represented still exists. The court emphasized that an affidavit is an affirmation of truth by the deponent, and the...
Source-derived case information.
- Citation
- [2017] KEHC 418 (KLR)
- Parties
- Applicant: Ntaragwi M’Ikiara; Respondent: County Government of Meru; Interested Party: Jackson Munyua Mutuera
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application 18 of 2016
- Procedural Posture
- Judicial Review Application / Ruling on Application to Cross Examine Deponent of Affidavit
- Outcome
- Objection to cross-examination declined; directions issued for cross-examination of deponent or current office holder.
- Legal Topics
- Judicial Review Affidavits, Cross Examination of Deponents, Official Capacity Affidavits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ntaragwi M’Ikiara
Applicant
County Government of Meru
Respondent
Jackson Munyua Mutuera
Interested Party
Procedural Posture
Judicial Review Application / Ruling on Application to Cross Examine Deponent of Affidavit
Legal Issues
- 1 Whether the applicant is entitled to cross-examine the deponent of the respondent's affidavit in a judicial review application.
- 2 Whether the departure of the deponent from the respondent's service precludes cross-examination.
- 3 Whether the affidavit sworn in official capacity binds the office regardless of the deponent's current employment status.
Ratio Decidendi
The court held that the fact that Mr. Bikuri was no longer in the service of the respondent did not preclude cross-examination, as the affidavit was sworn in his official capacity and the office he represented still exists. The court emphasized that an affidavit is an affirmation of truth by the deponent, and the party seeking to challenge its contents is entitled to cross-examine the deponent or the current office holder. The objection to cross-examination was therefore declined, and directions were issued for the attendance of either Mr. Bikuri or the current County Executive Committee member for cross-examination.
Court Disposition
Objection to cross-examination declined; directions issued for cross-examination of deponent or current office holder.
Orders
- The deponent Martin Bikuri or the current County Executive Committee member in the relevant department of the County shall attend court on a date agreed upon by the parties for purposes of being cross-examined on the contents of the affidavit of Martin Bikuri.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
JUDICIAL REVIEW APPLICATION NO. 18 OF 2016
NTARAGWI M’IKIARA.........................................APPLICANT
VERSUS
COUNTY GOVERNMENT OF MERU..............RESPONDENT
JACKSON MUNYUA MUTUERA..........INTERESTED PARTY
R U L I N G
On 09. 10. 17, this matter was coming for directions when Mr. Kioga, Counsel for Ex-Parte Applicant informed the Court that he wished to cross examine the person known as Bikuri in respect of the latter’s affidavit. Mr. Bikuri had sworn the affidavit for and on behalf of the Respondent (County Government of Meru).
I Mr. E. Kimathi for the Respondent had objected to this prayer averring that the deponent has since left the service of the Respondent. He also averred that the affidavit is in tandem with the documents, and there was no need to cross examine this deponent.
Mr. M. Kariuki avers that this being a Judicial Review Motion, the concern is on the process and not merits of a decision and that the issue of ownership of the land is being dealt with in case No. 202/1995 . He therefore states that there is no basis of having cross examination upon Mr. Bikuri.
A perusal of the affidavit of Martin Bikuri sworn on 22. 05. 17, indicates that the deponent was the County Executive member for the department of lands, ICT and Planning in Meru County Government. He therefore swore the affidavit in his official capacity.
It follows that even if he is no longer in service of Respondent, the office he was representing is still there.
An affidavit is an affirmation that the contents thereof are truthful. It is the deponent making that affirmation and therefore, other parties cannot be the ones to confirm the truth in the affidavit,
I therefore decline to uphold the objection raised by the Respondent and the Interested Parties.
I direct that the deponent Martin Bikuri or the current County Executive Committee member in the relevant department of the County attends Court on a date agreed upon by the parties for purposes of being cross examined on the contents of the affidavit of Martin Bikuri.
DELIVERED, SIGNED AND DATED IN OPEN COURT AT MERU THIS 18TH OCTOBER, 2017 IN THE PRESENCE OF:-
CA: Janet
Kaimba for Interested Party present
Gatari H/B E.Kimathi for Respondent present
Kithinji H/B for Kioga for Ex-Applicant
HON. L.N. MBUGUA
ELC JUDGE