[2021] KEHC 2645 (KLR)
The court found that the appellant failed to establish sufficient grounds to warrant the summoning of the process server for cross-examination. The judge held that disputes regarding the identity of the person served and allegations of forgery in affidavits are not appropriate for resolution through...
Source-derived case information.
- Citation
- [2021] KEHC 2645 (KLR)
- Parties
- Appellant: Ongett Hesbon Momanyi; Respondent: Advocates Disciplinary Tribunal
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 698 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Oral Application for Cross Examination of Process Server
- Outcome
- application dismissed
- Judges
- JK Sergon
- Legal Topics
- Affidavit Cross Examination, Service of Process, Document Forgery, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Ongett Hesbon Momanyi
Appellant
Advocates Disciplinary Tribunal
Respondent
Procedural Posture
Civil Appeal / Ruling on Oral Application for Cross Examination of Process Server
Legal Issues
- 1 Whether the court should summon the process server for cross-examination regarding service of process as alleged by the appellant.
- 2 Whether allegations of forgery in an affidavit can be resolved through cross-examination or require a document examiner.
Ratio Decidendi
The court found that the appellant failed to establish sufficient grounds to warrant the summoning of the process server for cross-examination. The judge held that disputes regarding the identity of the person served and allegations of forgery in affidavits are not appropriate for resolution through cross-examination in this context. Instead, such issues should be addressed by filing further affidavits or, in the case of alleged forgery, by engaging a document examiner. The court exercised its discretion under Order 19 rule 2(1) of the Civil Procedure Rules and determined that the circumstances did not justify granting the appellant's oral application. Consequently, the application was...
Court Disposition
application dismissed
Orders
- The appellant's oral application to summon the process server for cross-examination is dismissed.
- Costs of the application shall abide the outcome of the applications dated 5th May 2021 and 2nd June 2021.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 698 OF 2016
ONGETT HESBON MOMANYI................................APPELLANT
VERSUS
ADVOCATES DISCIPLINARY TRIBUNAL........RESPONDENT
RULING
1) The appellant herein made an oral application in which hesought for the process server who effected service on him and or to his office and or to his staff to be summoned to be cross-examined over certain annexures attached to the replying affidavit of the Interested Party.
2) The appellant averred that he disputes that the person allegedlyserved was not a member of staff in his office. He also pointed out that one Mercy Wambua had denied swearing an affidavit therefore her affidavit filed in this matter is a forgery.
3) Mr. Kigen, learned advocate for the complainant apposed theappellant’s oral application. The learned advocate pointed out that the issue touching on the forgery of documents can only be determined by a document examiner and not through cross-examination. The learned advocate urged this court to dismiss the application and proceed to set a ruling date for the pending applications.
4) Mr. Mugo, learned advocate for the respondent urged this courtto dismiss the oral application since the applicant did not lay any foundation to enable this court issue summonses calling upon the process server to attend court to be cross-examined. This was also pointed out that the appellant failed to approach Law Society of Kenya to contact Ms Mercy Wambua to clarify the contents of the disputed affidavit.
5) Under Order 19 rule 2(1) of the Civil Procedure Rules, the courthas unfettered discretion to summon the deponent of an affidavit to be cross-examined on the contents of the averments of the affidavit. In this case the appellant has alleged that the process server effected service of process upon a party who was not his employee hence he requires the deponent of the affidavit of service to be cross-examined.
6) I do not think this is one of those grounds where a deponent ofan affidavit can be called upon to attend court for cross-examination. Such disputed facts can be resolved by filing other affidavits in response.
7) The appellant has also alleged that he needs to cross-examinethe process server to prove that there was forgery. With respect I do not think such an issue can be resolved using cross-examination. Such an issue can be resolved by the services of a document examiner.
8) For the above reasons, I find the appellant’s oral application tobe without merit. The same is dismissed with costs abiding the outcome of the two applications, one dated 5thMay 2021 and the other dated 2ndJune 2021.
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 22ND DAY OF OCTOBER, 2021.
...........................
J. K. SERGON
JUDGE
In the presence of:
.......................................for the Appellant
.......................................for the Respondent