[2024] KEHC 14637 (KLR)
The court held that the plaintiff's request to cross-examine the deponent of the defendant's affidavit is genuine and material to the determination of the regularity of the defendant's application for stay of execution. The court found that no prejudice would be suffered by the defendant if the deponent is presented...
Source-derived case information.
- Citation
- [2024] KEHC 14637 (KLR)
- Parties
- Plaintiff: Sasah Contractors Ltd; Defendant: Jaramogi Oginga Odinga University of Science And Technology; Garnishee: Equity Bank
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Civil Case E002 of 2023
- Procedural Posture
- Civil Case / Ruling on Application for Cross Examination of Affidavit Deponent Prior to Hearing of Stay Application
- Outcome
- Application for cross-examination of deponent allowed; directions on stay application deferred.
- Judges
- DK Kemei
- Legal Topics
- Affidavit Evidence, Cross Examination, Stay of Execution, Judgment Debtor Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sasah Contractors Ltd
Plaintiff
Jaramogi Oginga Odinga University of Science And Technology
Defendant
Equity Bank
Garnishee
Procedural Posture
Civil Case / Ruling on Application for Cross Examination of Affidavit Deponent Prior to Hearing of Stay Application
Legal Issues
- 1 Whether the plaintiff is entitled to cross-examine the deponent of the defendant's affidavit in support of the stay application before the application is heard.
- 2 Whether the cross-examination would prejudice the defendant or affect the pending notice of appeal.
- 3 Whether the deponent's employment status is material to the regularity of the defendant's application.
Ratio Decidendi
The court held that the plaintiff's request to cross-examine the deponent of the defendant's affidavit is genuine and material to the determination of the regularity of the defendant's application for stay of execution. The court found that no prejudice would be suffered by the defendant if the deponent is presented for cross-examination, and that the defendant's notice of appeal remains unaffected. The court emphasized that a deponent must always be ready to explain matters raised in their affidavit, as these are matters of evidence. Accordingly, the court ordered that the deponent, Kimwele Muneeni, appear for cross-examination before the hearing of the defendant's application for stay,...
Court Disposition
Application for cross-examination of deponent allowed; directions on stay application deferred.
Orders
- The deponent in the affidavit in support of the defendant’s application dated 4/11/2024, Kimwele Muneeni, is ordered to appear on a date to be agreed upon by the parties for purposes of cross-examination.
- Directions on the defendant’s application dated 4/11/2024 to await the outcome of the cross-examination of Kimwele Muneeni.
Full Case Text
Judgment text and source record
21 paragraphs
Sasah Contractors Ltd v Jaramogi Oginga Odinga University of Science and Technology; Equity Bank (Garnishee) (Civil Case E002 of 2023) [2024] KEHC 14637 (KLR) (20 November 2024) (Ruling)
Neutral citation: [2024] KEHC 14637 (KLR)
Republic of Kenya
In the High Court at Siaya
Civil Case E002 of 2023
DK Kemei, J
November 20, 2024
Between
Sasah Contractors Ltd
Plaintiff
and
Jaramogi Oginga Odinga University of Science And Technology
Defendant
and
Equity Bank
Garnishee
Ruling
1. I have noted the sentiments of the learned counsels herein. It is not in dispute that the Defendant/Judgment debtor was granted leave to file a formal application seeking stay of execution pending appeal. The same has since been filed and is dated 4/11/2024. Learned counsel for the Plaintiff has sought to cross examine the deponent of the affidavit in support of the said application one Kimwele Muneeni before the hearing of the Defendant’s application dated 4/11/2024. The Plaintiff’s counsel has submitted that the reasons for the cross examination is to establish whether the said deponent is an employee of the Defendant and thereafter establish whether the present application is regular.
2. I find the said issue to be quite genuine in that should it be found out that the deponent is not an employee as claimed, the same will have an impact on the Defendant’s application dated 4/11/2024. As counsel for the Plaintiff has indicated that the purpose of the intended cross examination is not to affect the Defendant’s Notice of Appeal to the Court of Appeal, the concerns by the counsel for the Defendants have been assessed and that the Defendant’s Notice aforesaid remains unaffected. As the issue of cross examination is germane to the Plaintiff objection to application, i find that there will be no prejudice suffered by the Defendant if the said deponent is presented to court for the purposes of cross examination. In any event, a deponent of an affidavit must always be ready and available to be called upon to explain certain issues raised in their affidavits since those issues deponed under oath are matters of evidence.
3. Consequently, I issue the following directions: -1. The Deponent in the affidavit in support of the defendant’s application dated 4/11/2024 namely Kimwele Muneeni is hereby ordered to appear on a date to be agreed upon by the parties for purposes of cross examination.2. Directions on the Defendant’s application dated 4/11/2024 to await the outcome of the aforesaid cross examination of Kimwele Muneeni.3. Interim orders earlier granted shall be extended to the next date.
RULING DATED AND DELIVERED THIS 20TH DAY OF NOVEMBER, 2024. D. KEMEIJUDGEIn the presence of:Otieno David …………for PlaintiffOnsongo………………..for DefendantBwire……………………..for GarnisheeOgendo………………….Court Assistant.