REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VOI
MISC CONSTITUTIONAL APP NO. E001 OF 2022
IN THE MATTER OF: ARTICLE 165(6) AND (7) OF THE CONSTITUTION
OF KENYA, 2010 AND THE SUPERVISORY JURISDICTION OF THE HIGH COURT
-AND-
IN THE MATTER OF: THE HIGH COURT (ORGANIZATION AND
ADMINISTRATION ACT; 2015,
-AND-
IN THE MATTER OF: AN APPLICATION FOR REVIEW OF ORDERS OF
THE VOI SENIOR RESIDENT MAGISTRATE’S COURT IN VOI SRMCC NO. 178 OF 2019 FELISTUS EVAH KIJALA (SUING AS THE ADMINISTRATOR AND LEGAL REPRESENTATIVE OF THE ESTATE OF THE LATE JACKSHAN DISII-DECEASED) -V-ARCHIE MBOGHO WINSTON AND YUNUS HAROON HUSSEIN
-BETWEEN-
ARCHIE MBOGHO WINSTON …..........................................................................................................APPLICANT
-VERSUS-
FELISTUS EVAH KIJALA (Suing as the Administrator
and Legal Representative of the estate of
JACKSHAN DISII - DECEASED)…...…….………………………………………….RESPONDENT
RULING
1. The application before me is a Notice of Motion dated 19th August, 2022 brought pursuant to the provisions of Article 165(6) and (7) of the Constitution of Kenya 2010, Section 27(1) and (3) of the High Court (Organization and Administration) Act, and Sections 3 and 3A of the Civil Procedure Act. The applicant seeks the following orders –
i) Spent;
ii) Spent;
iii) That this Honourable Court be pleased to call up file number Felistus Evah Kijala (Suing as the administrator and legal representative of the estate of the late JACKSHAN DISII – Deceased) -v- Archie Mbogho Winston and Yunus Haroon Hussein, Voi SPMCC No. 178 of 2019 and review and vary the order made therein on the 22nd July, 2022 on the applicant’s attendance for cross-examination by the respondents and the applicant’s physical attendance in Court without its Counsel contrary to the circular and directions by the Chief Justice and the applicant’s rights under Articles 25(c), 27(1), 47 and 50 of the Constitution of Kenya, 2010 and the need to file written submissions;
iv) That the orders and directions do issue –
a) The applicant is entitled to be heard in an application under Order 19 Rule 2 of the Civil Procedure Rules;
b) The grant of orders under Order 19 Rule 2 of the Civil Procedure Act without a hearing being granted to the parties and reasons being given amounts to an infringement of the rights under Articles 25(c), 27(1), 47 and 50 of the Constitution of Kenya, 2010 on Fair Administrative Action and a right to fair hearing;
c) The applicant and the respondent have a right to equal protection before the law in application of the rules in an application under Order 19 Rule 2 of the Civil Procedure Rules;
d) The discretion/ruling made by the Trial Court on 22nd July, 2022 were (sic) not reflection of the proceedings that took place on 19th May, 2022 hence be vacated; and
v) That there be an order for costs.
2. The application has been brought on the grounds on the face of the Motion and is supported by affidavits by Archie Mbogho Winston, the applicant herein sworn on 19th August, 2022 and 3rd October, 2022. In opposition thereto, on 19th September, 2022 the respondent filed a replying affidavit sworn on 5th September, 2022 by Felistus Evah Kijala the respondent herein, and a Notice of Preliminary Objection dated 15th September, 2022 raising the following grounds –
i) The suit is incurably defective, incompetent and cannot be sustained in law;
ii) The applicant seeks substantive orders in a miscellaneous application which is not founded upon any substantive pleading;
iii) The reliefs sought in the application are substantive in nature and as such, cannot be granted by way of a miscellaneous application; and
iv) The application be accordingly dismissed with costs.
3. The instant application was canvassed by way of written submissions. The applicant’s submissions were filed on 5th October, 2022 by the law firm of Jengo Associates Advocates, whereas the respondent’s submissions were filed by the law firm of S. M. Righa & Company Advocates on 24th October, 2022.
4. Mr. Jengo learned Counsel for the applicant relied on the Court of Appeal decision in the case of Kiru Tea Factory Company Limited v Stephen Maina Githiga & 13 others [2019] eKLR and submitted that the replying affidavit herein was filed out of time and without leave of the Court. He explained that on 7th September, 2022, this Court granted the respondent seven (7) days to file the said affidavit but the respondent filed it twelve (12) days later. Counsel urged this Court to strike out the replying affidavit herein and allow the instant application to proceed unopposed.
5. Counsel cited Articles 165(6) and (7) of the Constitution of Kenya, 2010 and stated that this Court has the requisite jurisdiction to call for the lower Court file and make appropriate orders in the interest of justice or where there is a bonafide apprehension of violation or abrogation of rights. To this end, he relied on the decisions in Boniface Muli v Hannington Musyoki [2012] eKLR and Asha Hamisi Nimutende v Mwaronga Nassoro Nassoro & another [2019] eKLR, among other authorities and asserted that this ground of the Preliminary Objection must fail.
6. In submitting that a miscellaneous application vide a Notice of Motion is the correct way to move the Court under Article 165(6) and (7) of the Constitution of Kenya, 2010, Mr. Jengo relied on the holding in the case of Stephen Githinji Kamau v National Land Commission & 2 others; Thome ‘V’ Resident Welfare Association (Interested Party) [2022] eKLR. He further stated that based on this case law, the second limb of the preliminary objection lacks merit thus the objection ought to be dismissed.
7. He stated that from the proceedings of 19th May, 2022, the applicant objected to the respondent’s application to cross-examine the applicant under oath on the contents of his affidavit in support of an application to set aside exparte judgment, and insisted that the respondent makes a formal application. Mr. Jengo submitted that there is no ruling on an application filed pursuant to the provisions of Order 19 Rule 2 of the Civil Procedure Rules, 2010, and that on 22nd July, 2022, the parties herein orally submitted before the Trial Court and urged the Court to deliver a ruling under Order 19 Rule 2 of the Civil Procedure Rules, 2010.
8. It was stated by Mr. Jengo that the Court’s directions issued on 22nd July, 2022 were given on the basis that an order under Order19 Rule 2 of the Civil Procedure Rules, 2010 had allegedly been issued on 19th May, 2022 which had actually not been given. He stated that there is on the face of the record a blatant error that can be corrected by this Court in exercise of its supervisory jurisdiction of revision. Counsel relied on the decisions in Invesco Assurance Co. Limited v Commissioner of Insurance & 8 others [2016] eKLR and Ndunde Investments Limited v Eugene Muthoni Dadet [2020] eKLR and submitted that in an application under Order 19 Rule 2 of the Civil Procedure Rules, 2010, parties have a right to be heard on it, and there are principles that guide the Court in making a determination, and that the Court must also give reasons for the need to cross-examine a deponent. He stated that in this case, that was not done as the respondent has never filed an application for cross-examination of the deponent.
9. Mr. Jengo submitted that if the matter is allowed to move forward, the applicant’s right to be heard and to fair administrative action in an application under Order 19 Rule 2 of the Civil Procedure Rules, 2010 will be violated. He cited the case of National Super Alliance (NASA) Kenya v Independent Electoral and Boundaries Commission [2017] eKLR, and submitted that in as much as Courts have discretion, the said discretion is not a license to act without consideration of what parties say, the law, and the need to have substantive reasons.
10. On his part, Mr. Kiwinga, learned Counsel for the respondent relied on the case of Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 others [2015] eKLR and submitted that the basis of the Preliminary Objection is that the applicant is seeking substantive orders through a miscellaneous application which if granted at this stage will finally determine the matter without hearing both parties at trial. In submitting that Courts have taken the position that substantive orders cannot be issued in a miscellaneous application, Counsel cited the case of Witmore Investment Limited v County Government of Kirinyaga & 3 others [2016] eKLR quoted in the case of Rockland Kenya Limited v Commissioner General of the Kenya Revenue Authority & another [2020] eKLR.
11. He relied on the case of David Kanjai Keter & 9 others v Ethics and Anti-Corruption Commission & another [2014] eKLR and contended that the instant application is based on the grounds that the applicant’s rights to a fair hearing, as well as equal protection under the law is being threatened, thus the need for this Court’s intervention. He stated that the orders sought herein being substantive in nature cannot issue by way of a miscellaneous application.
12. Counsel asserted that the instant application seeks to challenge the Trial Court’s order requiring the applicant to appear before the Court for purposes of cross-examination on the averments raised in his affidavit. He contended that the said order was issued pursuant to the provisions of Order 19 Rule 2 of the Civil Procedure Rules, 2010. Mr. Kiwinga referred this Court to the holding in the case of Nicholas Kiptoo Arap Salat v IEBC & 7 others as quoted in the case of Kenya Deposit Insurance Corporation v Hassan Ahmed Abdul Hafedi Zubeidi & 5 others [2017] eKLR and stated that the respondent duly filed and served the specific grounds upon which they sought to have the applicant cross-examined, therefore the Court properly exercised its discretion by ordering the applicant to appear before the Court for cross-examination on the basis of his affidavit.
13. Mr. Kiwinga submitted that the applicant has not demonstrated in what manner the Court acted in an irregular manner. He further submitted that the instant application is an appeal filed out of time disguised as a miscellaneous application.
ANALYSIS AND DETERMINATION.
14. I have considered the application filed herein, the grounds on the face of it and the affidavits filed in support thereof, the replying affidavit and Preliminary Objection by the respondent. I have also considered the written submissions by Counsel for the parties. The issues that arise for determination are –
i) Whether the Preliminary Objection dated 15th September, 2022 is merited;
ii) Whether the replying affidavit by the respondent ought to be struck out for being filed out of time and without leave of the Court; and
iii) If the instant application is merited.
15. In the affidavit filed by the applicant, he deposed that he filed a Notice of Motion dated 7th March, 2022 seeking to set aside an ex parte judgment in Felistus Evah Kijala (Suing as the administrator and legal representative of the estate of the late JACKSHAN DISII – Deceased) -v- Archie Mbogho Winston and Yunus Haroon Hussein, Voi SPMCC No. 178 of 2019, and the Court granted him an order for stay pending hearing and determination of the said application on condition that he deposits the decretal sum in a joint account.
16. He averred that on 19th May, 2022, the Trial Magistrate set aside the said stay orders for non-compliance. The applicant further averred that on the same day, the respondent attempted to make an oral application for cross-examination of the applicant, but his Advocate on record insisted that the respondent should file a formal application on the same. He contended that at the tail end of the proceedings of that day, his Counsel on record asked for a clarification of the orders made and the way forward, and the Court indicated that the respondent’s Advocate knew what to do if he wanted to cross-examine the deponent of the supporting affidavit therein. In addition, that the Court orally insisted that the said application be disposed of by oral hearing.
17. The applicant contended that on 22nd July, 2022, his Advocates on record attended Court ready to argue an application for cross-examination of the applicant only for the Court to allege that it ruled on the issue on 19th May, 2022. He averred that the Trial Court’s insistence that he appears in Court physically together with his Advocate on record, was contrary to the Chief Justice’s directions dated 12th July, 2022.
18. It was stated by the applicant that the Trial Court rejected his plea to file skeleton submissions without giving any plausible reasons. He contended that the net effect of the directions given on 22nd July, 2022 is that the Trial Magistrate made orders without hearing him as required under Order 19 Rule 2(1) of the Civil Procedure Rules, 2010 thus infringing on his rights under Articles 47 and 50 of the Constitution.
19. The applicant averred that the Trial Court ought to have allowed his application to dispose of the application vide written submissions, the same being unopposed, since the refusal to allow parties to file written submissions causes a waste of useful judicial time and contravenes the very essence of Sections 1A and 1B of the Civil Procedure Act and Article 159(1)(b), (d) & (e) of the Constitution.
20. The respondent in her replying affidavit deposed that on 19th May, 2022, the Trial Court issued directions as to the manner in which the applicant’s application to set aside the ex parte judgment was to be heard. She averred that her Advocates on record made an application under Order 19 of the Civil Procedure Rules for cross-examination of the applicant on the basis of the averments captured in the supporting affidavit, and the Court directed that the application be heard orally, and that each party would be granted an opportunity to make their submissions.
21. The respondent further averred that her Advocates on record duly filed grounds in support of the prayer for cross-examination as required by the law, and it was not true that the applicant’s application dated 25th May, 2022 was unopposed. She contended that from the proceedings of 19th May, 2022, it is clear that the applicant did not raise any objection in regard to the application proceeding by way of oral submissions.
22. She deposed that the purpose of a Court of law is to establish the truth and do justice to both parties before it, thus it is in the exercise of that power as provided for under Order 19 of the Civil Procedure Rules, 2010 that the Trial Court ordered the applicant herein to appear in Court for cross-examination. It was stated by the respondent that there are no rights of the applicant that have been infringed upon. The respondent urged this Court to allow the application before the Trial Court to proceed and any dissatisfied party would have a right of appeal against the same.
23. The applicant in his further affidavit deposed that paragraphs 5 to 19 and 35 to 36 of the respondent’s replying affidavit are irrelevant as they deal with matters in the application to set aside the ex parte judgment that has been filed before the Trial Court which are within the purview of the Trial Magistrate trying the matter, and not this Court in exercise of its supervisory jurisdiction. He averred that he filed the instant application promptly after the need arose.
24. The applicant asserted that it is trite law that before an adverse order can be made, a party should have notice of the allegations, there must be evidence to support the said allegations and the party must be given an opportunity to be heard. He stated that applications made under Order 19 Rule 2 of the Civil Procedure Rules, 2010 are not an exception.
Whether the Preliminary Objection dated 15th September, 2022 is merited.
25. A perusal of the Preliminary Objection herein reveals that the applicant challenges the instant application on grounds that it seeks substantive orders in a miscellaneous application which prayers are not founded on any substantive pleading, and that since the reliefs sought are substantive in nature, they cannot be granted in a miscellaneous application. In the case of Oraro v Mbaja [2005] eKLR, the Court defined what constitutes a Preliminary Objection as hereunder -
“I think the principle is abundantly clear. A “preliminary objection”, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed.”
26. The applicant has invoked this Court’s supervisory jurisdiction as provided for under Article 165(6) and (7) of the Constitution of Kenya, 2010 which provides as hereunder -
“(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”
27. The respondent submitted that the application herein is fatally defective for seeking substantive orders in a miscellaneous application that is not anchored on any substantive pleading. In addition, that the reliefs sought herein are substantive in nature thus they cannot be granted by way of a miscellaneous application. This Court has to determine whether the applicant in invoking the supervisory jurisdiction of this court under Article 165(6) and (7) of the Constitution, 2010, has moved the Court in the appropriate manner.
28. The applicant filed Notice of motion in a miscellaneous application. Section 19 of the Civil Procedure Act, Cap 21 provides that -
“Every suit shall be instituted in such manner as may be prescribed by Rules.”
29. Similarly, Order 3 Rule 1 of the Civil Procedure Rules 2010 provides that -
“Every suit shall be instituted by presenting a plaint to the Court, or in such other manner as may be prescribed.”
30. From the above, it is evident that both Section 19 of the Civil Procedure Act and Order 3 of the Civil Procedure Rules, 2010 use the word “shall”, which makes the filing of a plaint a mandatory provision, except where otherwise provided for by the law. Justice Gikonyo in the case of Abdi Abdullahi Somo v Ben Chikamai & 2 others [2016] eKLR, when dealing with a similar issue held as follows-
“In my life as a Judge I have in the past heard similar arguments being advanced that a Notice of Motion cannot commence substantive proceedings. But it should be understood that as a matter of general principal, a notice of Motion is a competent way of initiating substantive proceedings in Court. it will all depend on the particular statute governing the particular proceeding in question. Therefor where the law provides for the manner of commencing a suit or proceedings in court then that procedure applies…” (emphasis added).
31. Further, in the case of Stephen Githinji Kamau v National Land Commission & 2 others; Thome ‘V’ Resident Welfare association (Interested Party) (supra) cited by the applicant herein, the Court in addressing the manner in which an applicant invoking the supervisory jurisdiction of the Court should approach the Court held as follows-
“The Mutunga Rules were made under the Constitution of Kenya 2010 and they were limited only to the procedure for enforcement of Fundamental Rights and Freedoms in the bill of rights under Article 22 of the Constitution. Prior to the Mutunga rules, we had The Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006, L.N No. 6 of 2006 (hereinafter referred to as “Gicheru Rules”). Gicheru Rules were made under the old Constitution and they provided for; the procedure for invoking the supervisory jurisdiction of the High Court in Part I, the procedure for invoking the interpretation jurisdiction of the High in part II and the procedure for enforcing violation or threatened violation of fundamental rights and freedoms in part III thereof. When Mutunga Rules were made, it repealed only part III of the Gicheru Rules that was dealing with the procedure for enforcing violation or threatened violation of fundamental rights and freedoms. The rest of Gicheru Rules remained. What this means is that the procedure for invoking the supervisory and interpretation jurisdiction of the High Court remained that in the Gicheru Rules. Rule 2 of Gicheru Rules provides that a person wishing to invoke the supervisory jurisdiction of the court shall do so by way of an Originating Notice of Motion. (emphasis added) This is the procedure through which the Applicant has moved the court. The Applicant’s application is therefore properly before the court ...”
32. I concur with the observation made by Judge S. Okong’o in the aforementioned matter and it is my finding that the applicant’s application is properly before this Court having been brought by way of a Notice of Motion as provided for by the Rules. Consequently, the Preliminary Objection dated 15th September, 2022 fails.
Whether the replying affidavit by the respondent ought to be struck out for being filed out of time and without leave of Court.
33. The applicant submitted that on 7th September, 2022, this Court granted the respondent seven (7) days to file a replying affidavit to the application herein, but the respondent filed the said affidavit twelve (12) days later. He contended that since the replying affidavit was filed out of time and without leave of the Court, it should be struck out. It is not disputed that on 7th September, 2022, the respondent was granted seven (7) days to file and serve a response to the application herein, and the matter would be mentioned on 21st September, 2022.
34. On perusal of this Court’s proceedings of 21st September, 2022, I note that Counsel for the applicant indicated that he was served on 20th September, 2022 at 4.33 p.m., with a Notice of Preliminary Objection, and a replying affidavit by the respondent. Thereafter, he sought leave of the Court to file a further affidavit together with written submissions within fourteen (14) days. On that day, the applicant did not raise the issue that the respondent’s submissions had been filed out of time and without leave of the Court. The said issue has only been raised in his submissions.
35. It is trite that submissions are not pleadings, and if at all the applicant had an issue with the respondent’s replying affidavit, he ought to have raised it in his further affidavit and/or on 21st September, 2022 before the Court gave directions for the filing of written submissions, and reserved a date for ruling. That would have given the respondent notice of the applicant’s objection and this Court would have been given an opportunity to respond to the same.
36. It is therefore this Court’s finding that the contention by the applicant that the respondent’s replying affidavit was filed out of time and without leave of the Court is an afterthought, and having been raised too late in the day, it holds no water. The fact that the applicant sought leave of the Court to file a further affidavit and submissions, and the Court gave directions to that effect, and reserved the matter for ruling, essentially means that the replying affidavit was deemed to be properly on record by the parties and the Court.
If the instant application is merited.
37. As held here before, pursuant to the provisions of Article 165 (6) and (7) of the Constitution of Kenya, 2010, this Court has supervisory jurisdiction over subordinate Courts. The applicant stated that he filed a Notice of Motion application dated 7th March, 2022 seeking to set aside an ex parte judgment in the Trial Court, and the Court granted him an order for stay pending the hearing and determination of the said application on condition that he deposits the decretal sum in a joint account. However, on 19th May, 2022, the Trial Magistrate set aside the said stay orders for non-compliance on the applicant’s part and directed that the application dated 7th March, 2022 be disposed of by way of oral hearing. The respondent on the other hand attempted to make an oral application for cross-examination of the applicant.
38. It is the applicant’s case that on 22nd July, 2022, his Advocates on record attended Court ready to argue an application for cross-examination of the applicant, only for the Court to allege that it had already ruled on the issue on 19th May, 2022. He contended that the Trial Magistrate made orders without hearing him as required under Order 19 Rule 2(1) of the Civil Procedure Rules, 2010 thus infringing on his rights under Article 47 and 50 of the Constitution of Kenya, 2010.
39. The respondent on the other hand contended that on 19th May, 2022, the Trial Court issued directions as to the hearing of the applicant’s application dated 7th March, 2022. She averred that her Advocates on record made an application under Order 19 of the Civil Procedure Rules, 2010 for cross-examination of the applicant on the basis of the averments captured in the supporting affidavit. The Court directed for the application to be heard orally and for each party to be granted an opportunity to make their submissions. She also stated that her Advocates on record filed grounds in support of the prayer for cross-examination of the applicant as required by the law, and as such, it is not true that the applicant’s application dated 25th May, 2022 was unopposed.
40. Order 19 Rule 2 of the Civil Procedure Rules, 2010 provides that –
“(1) 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.
(2) Such attendance shall be in court, unless the deponent is exempted from personal appearance in court, or the Court otherwise directs.”
41. It is evident that in an application, evidence may be given by affidavit however, if a party wishes to cross-examine the deponent of an affidavit, he shall make an application before the Court citing the reasons why he wishes to do so. The Court shall then determine whether or not the cross-examination is necessary and render its ruling. In the case of Republic v Kenya Revenue Authority exparte, Althaus Management & Consultancy Ltd [2015] eKLR quoted with authority by the Court in Khen Kharis Mburu & another v James Karong Ng’ang’a & another [2021] eKLR the Court held that –
“[14.] 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 (emphasis added). 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.” (see also Ahmednasir Abdikadir & Co. Advocates v National Bank of Kenya Limtied (2) [2006] 2 EA 6.)
42. Similarly, in G G R v H P S [2012] eKLR the Court stated the following on the issue of cross-examination of deponents-
“The law has allowed evidence to be proved by way of affidavits under Order 19. But under Rule 2 of the said Order, the Court may order a deponent of an Affidavit to attend court to be cross-examined. It would appear that where allegations of matters touching on fraud, mala fides, authenticity of the facts deponed (sic), bad motive among others are raised, cross-examination of a deponent of an Affidavit may be ordered. This also extends to where there is a conflict of Affidavits on record or where the evidence deponed (sic) to is conflicting in itself. Further, the order for cross examination is a discretionary order but as is in all discretions, the same must be exercised judiciously and not whimsically. There should be special circumstances before ordering a cross examination of a deponent on an Affidavit. The court must feel that adequate material has been placed before it that show that in the interest of justice and to arrive at the truth, it is just and fair to order cross examination.” (Emphasis added).
43. From the foregoing authorities, prior to the Court making an order for cross-examination of a deponent, an application must be made citing the grounds and/or reasons as to why cross-examination of a deponent is necessary. It is not in dispute that the respondent did not file an application before the Trial Court seeking an order to cross-examine the applicant on the contents of his supporting affidavit. On perusal of the lower Court record, it is evident that on 19th May, 2022, the respondent’s Advocates on record expressed his wish to have the applicant cross-examined. He did not however cite any reasons as to why he intended to do so. Thereafter, the Court gave directions that the application dated 7th March, 2022 would be heard interpartes orally, on 22nd July, 2022 given that the respondent wished to cross-examine the deponent.
44. Further, on 22nd July, 2022, the Trial Court declined to allow the applicant’s application to review its directions given on 19th May, 2022, on the ground that it would amount to denying the respondent a chance to seek to cross-examine the respondent, in the Motion dated 7th March, 2022.
45. In the case of Nicholas Kiptoo Arap Salat v Independent Electoral and Boundaries Commission & 7 others [2013] eKLR the Court held as follows on cross-examination of a deponent-
“In my view then, the provisions of Order 19 rule 2(1) of the Civil procedure Rules and rule 12 (2)(c) of the Elections (Parliamentary and County Elections) Petition Rules should be interpreted to mean that the cross-examination of a deponent is not mandatory, but the court may, in the exercise of its discretion and on application by either party, order that a deponent be cross-examined. In the exercise of such discretion, the court should seek the demonstration by the applicant that there are sufficient grounds for making an order for cross-examination. Such demonstration should be by reference to the material contained in the affidavit whose deponent is sought to be cross-examined to show that the affidavit contains disputed matters when examined against the affidavit by the respondent. Where no sufficient basis has been laid the request to cross-examine should be declined.” (Emphasis added).
46. In the absence of a formal application seeking leave to cross-examine the applicant on the contents of his affidavit in support of the application dated 7th March, 2022, the Trial Court had no basis in directing that the applicant and his Counsel attend Court physically for purposes of cross-examination of the applicant, since the respondent ought to have demonstrated the existence of special circumstances to warrant being granted the said order. It is my finding that the grounds in support of the prayer for cross-examination filed after the Court gave orders for cross-examination of the applicant cannot take the place of an application under the provisions of Order 19 Rule 2 of the Civil Procedure Rules, 2010.
47. I agree with Counsel for the applicant that the net effect of the Trial Court’s directions given on 19th May, 2022 and 22nd July, 2022 is that they infringed on the applicant’s rights under Articles 47 and 50 of the Constitution of Kenya, 2010.
48. The upshot is that the application dated 19th August, 2022 is merited. In the premise I make the following orders –
i) The Court orders made by the Trial Court on 19th May, 2022 and 22nd July, 2022 in the case of Felistus Evah Kijala (Suing as the Administrator and Legal Representative of the estate of the late JACKSHAN DISII – Deceased) -v- Archie Mbogho Winston and Yunus Haroon Hussein, Voi SPMCC No. 178 of 2019 are hereby set aside;
ii) The case file is remitted to the Trial Court for directions on 9th July, 2024; and
iii) Costs are awarded to the applicant.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 7th day of June, 2024. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
No appearance for the applicant
No appearance for the respondent
Ms. B. Wokabi – Court Assistant.
IN THE HIGH COURT OF KENYA AT VOI
MISC CONSTITUTIONAL APP NO. E001 OF 2022
IN THE MATTER OF: ARTICLE 165(6) AND (7) OF THE CONSTITUTION
OF KENYA, 2010 AND THE SUPERVISORY JURISDICTION OF THE HIGH COURT
-AND-
IN THE MATTER OF: THE HIGH COURT (ORGANIZATION AND
ADMINISTRATION ACT; 2015,
-AND-
IN THE MATTER OF: AN APPLICATION FOR REVIEW OF ORDERS OF
THE VOI SENIOR RESIDENT MAGISTRATE’S COURT IN VOI SRMCC NO. 178 OF 2019 FELISTUS EVAH KIJALA (SUING AS THE ADMINISTRATOR AND LEGAL REPRESENTATIVE OF THE ESTATE OF THE LATE JACKSHAN DISII-DECEASED) -V-ARCHIE MBOGHO WINSTON AND YUNUS HAROON HUSSEIN
-BETWEEN-
ARCHIE MBOGHO WINSTON …..........................................................................................................APPLICANT
-VERSUS-
FELISTUS EVAH KIJALA (Suing as the Administrator
and Legal Representative of the estate of
JACKSHAN DISII - DECEASED)…...…….………………………………………….RESPONDENT
RULING
1. The application before me is a Notice of Motion dated 19th August, 2022 brought pursuant to the provisions of Article 165(6) and (7) of the Constitution of Kenya 2010, Section 27(1) and (3) of the High Court (Organization and Administration) Act, and Sections 3 and 3A of the Civil Procedure Act. The applicant seeks the following orders –
i) Spent;
ii) Spent;
iii) That this Honourable Court be pleased to call up file number Felistus Evah Kijala (Suing as the administrator and legal representative of the estate of the late JACKSHAN DISII – Deceased) -v- Archie Mbogho Winston and Yunus Haroon Hussein, Voi SPMCC No. 178 of 2019 and review and vary the order made therein on the 22nd July, 2022 on the applicant’s attendance for cross-examination by the respondents and the applicant’s physical attendance in Court without its Counsel contrary to the circular and directions by the Chief Justice and the applicant’s rights under Articles 25(c), 27(1), 47 and 50 of the Constitution of Kenya, 2010 and the need to file written submissions;
iv) That the orders and directions do issue –
a) The applicant is entitled to be heard in an application under Order 19 Rule 2 of the Civil Procedure Rules;
b) The grant of orders under Order 19 Rule 2 of the Civil Procedure Act without a hearing being granted to the parties and reasons being given amounts to an infringement of the rights under Articles 25(c), 27(1), 47 and 50 of the Constitution of Kenya, 2010 on Fair Administrative Action and a right to fair hearing;
c) The applicant and the respondent have a right to equal protection before the law in application of the rules in an application under Order 19 Rule 2 of the Civil Procedure Rules;
d) The discretion/ruling made by the Trial Court on 22nd July, 2022 were (sic) not reflection of the proceedings that took place on 19th May, 2022 hence be vacated; and
v) That there be an order for costs.
2. The application has been brought on the grounds on the face of the Motion and is supported by affidavits by Archie Mbogho Winston, the applicant herein sworn on 19th August, 2022 and 3rd October, 2022. In opposition thereto, on 19th September, 2022 the respondent filed a replying affidavit sworn on 5th September, 2022 by Felistus Evah Kijala the respondent herein, and a Notice of Preliminary Objection dated 15th September, 2022 raising the following grounds –
i) The suit is incurably defective, incompetent and cannot be sustained in law;
ii) The applicant seeks substantive orders in a miscellaneous application which is not founded upon any substantive pleading;
iii) The reliefs sought in the application are substantive in nature and as such, cannot be granted by way of a miscellaneous application; and
iv) The application be accordingly dismissed with costs.
3. The instant application was canvassed by way of written submissions. The applicant’s submissions were filed on 5th October, 2022 by the law firm of Jengo Associates Advocates, whereas the respondent’s submissions were filed by the law firm of S. M. Righa & Company Advocates on 24th October, 2022.
4. Mr. Jengo learned Counsel for the applicant relied on the Court of Appeal decision in the case of Kiru Tea Factory Company Limited v Stephen Maina Githiga & 13 others [2019] eKLR and submitted that the replying affidavit herein was filed out of time and without leave of the Court. He explained that on 7th September, 2022, this Court granted the respondent seven (7) days to file the said affidavit but the respondent filed it twelve (12) days later. Counsel urged this Court to strike out the replying affidavit herein and allow the instant application to proceed unopposed.
5. Counsel cited Articles 165(6) and (7) of the Constitution of Kenya, 2010 and stated that this Court has the requisite jurisdiction to call for the lower Court file and make appropriate orders in the interest of justice or where there is a bonafide apprehension of violation or abrogation of rights. To this end, he relied on the decisions in Boniface Muli v Hannington Musyoki [2012] eKLR and Asha Hamisi Nimutende v Mwaronga Nassoro Nassoro & another [2019] eKLR, among other authorities and asserted that this ground of the Preliminary Objection must fail.
6. In submitting that a miscellaneous application vide a Notice of Motion is the correct way to move the Court under Article 165(6) and (7) of the Constitution of Kenya, 2010, Mr. Jengo relied on the holding in the case of Stephen Githinji Kamau v National Land Commission & 2 others; Thome ‘V’ Resident Welfare Association (Interested Party) [2022] eKLR. He further stated that based on this case law, the second limb of the preliminary objection lacks merit thus the objection ought to be dismissed.
7. He stated that from the proceedings of 19th May, 2022, the applicant objected to the respondent’s application to cross-examine the applicant under oath on the contents of his affidavit in support of an application to set aside exparte judgment, and insisted that the respondent makes a formal application. Mr. Jengo submitted that there is no ruling on an application filed pursuant to the provisions of Order 19 Rule 2 of the Civil Procedure Rules, 2010, and that on 22nd July, 2022, the parties herein orally submitted before the Trial Court and urged the Court to deliver a ruling under Order 19 Rule 2 of the Civil Procedure Rules, 2010.
8. It was stated by Mr. Jengo that the Court’s directions issued on 22nd July, 2022 were given on the basis that an order under Order19 Rule 2 of the Civil Procedure Rules, 2010 had allegedly been issued on 19th May, 2022 which had actually not been given. He stated that there is on the face of the record a blatant error that can be corrected by this Court in exercise of its supervisory jurisdiction of revision. Counsel relied on the decisions in Invesco Assurance Co. Limited v Commissioner of Insurance & 8 others [2016] eKLR and Ndunde Investments Limited v Eugene Muthoni Dadet [2020] eKLR and submitted that in an application under Order 19 Rule 2 of the Civil Procedure Rules, 2010, parties have a right to be heard on it, and there are principles that guide the Court in making a determination, and that the Court must also give reasons for the need to cross-examine a deponent. He stated that in this case, that was not done as the respondent has never filed an application for cross-examination of the deponent.
9. Mr. Jengo submitted that if the matter is allowed to move forward, the applicant’s right to be heard and to fair administrative action in an application under Order 19 Rule 2 of the Civil Procedure Rules, 2010 will be violated. He cited the case of National Super Alliance (NASA) Kenya v Independent Electoral and Boundaries Commission [2017] eKLR, and submitted that in as much as Courts have discretion, the said discretion is not a license to act without consideration of what parties say, the law, and the need to have substantive reasons.
10. On his part, Mr. Kiwinga, learned Counsel for the respondent relied on the case of Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 others [2015] eKLR and submitted that the basis of the Preliminary Objection is that the applicant is seeking substantive orders through a miscellaneous application which if granted at this stage will finally determine the matter without hearing both parties at trial. In submitting that Courts have taken the position that substantive orders cannot be issued in a miscellaneous application, Counsel cited the case of Witmore Investment Limited v County Government of Kirinyaga & 3 others [2016] eKLR quoted in the case of Rockland Kenya Limited v Commissioner General of the Kenya Revenue Authority & another [2020] eKLR.
11. He relied on the case of David Kanjai Keter & 9 others v Ethics and Anti-Corruption Commission & another [2014] eKLR and contended that the instant application is based on the grounds that the applicant’s rights to a fair hearing, as well as equal protection under the law is being threatened, thus the need for this Court’s intervention. He stated that the orders sought herein being substantive in nature cannot issue by way of a miscellaneous application.
12. Counsel asserted that the instant application seeks to challenge the Trial Court’s order requiring the applicant to appear before the Court for purposes of cross-examination on the averments raised in his affidavit. He contended that the said order was issued pursuant to the provisions of Order 19 Rule 2 of the Civil Procedure Rules, 2010. Mr. Kiwinga referred this Court to the holding in the case of Nicholas Kiptoo Arap Salat v IEBC & 7 others as quoted in the case of Kenya Deposit Insurance Corporation v Hassan Ahmed Abdul Hafedi Zubeidi & 5 others [2017] eKLR and stated that the respondent duly filed and served the specific grounds upon which they sought to have the applicant cross-examined, therefore the Court properly exercised its discretion by ordering the applicant to appear before the Court for cross-examination on the basis of his affidavit.
13. Mr. Kiwinga submitted that the applicant has not demonstrated in what manner the Court acted in an irregular manner. He further submitted that the instant application is an appeal filed out of time disguised as a miscellaneous application.
ANALYSIS AND DETERMINATION.
14. I have considered the application filed herein, the grounds on the face of it and the affidavits filed in support thereof, the replying affidavit and Preliminary Objection by the respondent. I have also considered the written submissions by Counsel for the parties. The issues that arise for determination are –
i) Whether the Preliminary Objection dated 15th September, 2022 is merited;
ii) Whether the replying affidavit by the respondent ought to be struck out for being filed out of time and without leave of the Court; and
iii) If the instant application is merited.
15. In the affidavit filed by the applicant, he deposed that he filed a Notice of Motion dated 7th March, 2022 seeking to set aside an ex parte judgment in Felistus Evah Kijala (Suing as the administrator and legal representative of the estate of the late JACKSHAN DISII – Deceased) -v- Archie Mbogho Winston and Yunus Haroon Hussein, Voi SPMCC No. 178 of 2019, and the Court granted him an order for stay pending hearing and determination of the said application on condition that he deposits the decretal sum in a joint account.
16. He averred that on 19th May, 2022, the Trial Magistrate set aside the said stay orders for non-compliance. The applicant further averred that on the same day, the respondent attempted to make an oral application for cross-examination of the applicant, but his Advocate on record insisted that the respondent should file a formal application on the same. He contended that at the tail end of the proceedings of that day, his Counsel on record asked for a clarification of the orders made and the way forward, and the Court indicated that the respondent’s Advocate knew what to do if he wanted to cross-examine the deponent of the supporting affidavit therein. In addition, that the Court orally insisted that the said application be disposed of by oral hearing.
17. The applicant contended that on 22nd July, 2022, his Advocates on record attended Court ready to argue an application for cross-examination of the applicant only for the Court to allege that it ruled on the issue on 19th May, 2022. He averred that the Trial Court’s insistence that he appears in Court physically together with his Advocate on record, was contrary to the Chief Justice’s directions dated 12th July, 2022.
18. It was stated by the applicant that the Trial Court rejected his plea to file skeleton submissions without giving any plausible reasons. He contended that the net effect of the directions given on 22nd July, 2022 is that the Trial Magistrate made orders without hearing him as required under Order 19 Rule 2(1) of the Civil Procedure Rules, 2010 thus infringing on his rights under Articles 47 and 50 of the Constitution.
19. The applicant averred that the Trial Court ought to have allowed his application to dispose of the application vide written submissions, the same being unopposed, since the refusal to allow parties to file written submissions causes a waste of useful judicial time and contravenes the very essence of Sections 1A and 1B of the Civil Procedure Act and Article 159(1)(b), (d) & (e) of the Constitution.
20. The respondent in her replying affidavit deposed that on 19th May, 2022, the Trial Court issued directions as to the manner in which the applicant’s application to set aside the ex parte judgment was to be heard. She averred that her Advocates on record made an application under Order 19 of the Civil Procedure Rules for cross-examination of the applicant on the basis of the averments captured in the supporting affidavit, and the Court directed that the application be heard orally, and that each party would be granted an opportunity to make their submissions.
21. The respondent further averred that her Advocates on record duly filed grounds in support of the prayer for cross-examination as required by the law, and it was not true that the applicant’s application dated 25th May, 2022 was unopposed. She contended that from the proceedings of 19th May, 2022, it is clear that the applicant did not raise any objection in regard to the application proceeding by way of oral submissions.
22. She deposed that the purpose of a Court of law is to establish the truth and do justice to both parties before it, thus it is in the exercise of that power as provided for under Order 19 of the Civil Procedure Rules, 2010 that the Trial Court ordered the applicant herein to appear in Court for cross-examination. It was stated by the respondent that there are no rights of the applicant that have been infringed upon. The respondent urged this Court to allow the application before the Trial Court to proceed and any dissatisfied party would have a right of appeal against the same.
23. The applicant in his further affidavit deposed that paragraphs 5 to 19 and 35 to 36 of the respondent’s replying affidavit are irrelevant as they deal with matters in the application to set aside the ex parte judgment that has been filed before the Trial Court which are within the purview of the Trial Magistrate trying the matter, and not this Court in exercise of its supervisory jurisdiction. He averred that he filed the instant application promptly after the need arose.
24. The applicant asserted that it is trite law that before an adverse order can be made, a party should have notice of the allegations, there must be evidence to support the said allegations and the party must be given an opportunity to be heard. He stated that applications made under Order 19 Rule 2 of the Civil Procedure Rules, 2010 are not an exception.
Whether the Preliminary Objection dated 15th September, 2022 is merited.
25. A perusal of the Preliminary Objection herein reveals that the applicant challenges the instant application on grounds that it seeks substantive orders in a miscellaneous application which prayers are not founded on any substantive pleading, and that since the reliefs sought are substantive in nature, they cannot be granted in a miscellaneous application. In the case of Oraro v Mbaja [2005] eKLR, the Court defined what constitutes a Preliminary Objection as hereunder -
“I think the principle is abundantly clear. A “preliminary objection”, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed.”
26. The applicant has invoked this Court’s supervisory jurisdiction as provided for under Article 165(6) and (7) of the Constitution of Kenya, 2010 which provides as hereunder -
“(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”
27. The respondent submitted that the application herein is fatally defective for seeking substantive orders in a miscellaneous application that is not anchored on any substantive pleading. In addition, that the reliefs sought herein are substantive in nature thus they cannot be granted by way of a miscellaneous application. This Court has to determine whether the applicant in invoking the supervisory jurisdiction of this court under Article 165(6) and (7) of the Constitution, 2010, has moved the Court in the appropriate manner.
28. The applicant filed Notice of motion in a miscellaneous application. Section 19 of the Civil Procedure Act, Cap 21 provides that -
“Every suit shall be instituted in such manner as may be prescribed by Rules.”
29. Similarly, Order 3 Rule 1 of the Civil Procedure Rules 2010 provides that -
“Every suit shall be instituted by presenting a plaint to the Court, or in such other manner as may be prescribed.”
30. From the above, it is evident that both Section 19 of the Civil Procedure Act and Order 3 of the Civil Procedure Rules, 2010 use the word “shall”, which makes the filing of a plaint a mandatory provision, except where otherwise provided for by the law. Justice Gikonyo in the case of Abdi Abdullahi Somo v Ben Chikamai & 2 others [2016] eKLR, when dealing with a similar issue held as follows-
“In my life as a Judge I have in the past heard similar arguments being advanced that a Notice of Motion cannot commence substantive proceedings. But it should be understood that as a matter of general principal, a notice of Motion is a competent way of initiating substantive proceedings in Court. it will all depend on the particular statute governing the particular proceeding in question. Therefor where the law provides for the manner of commencing a suit or proceedings in court then that procedure applies…” (emphasis added).
31. Further, in the case of Stephen Githinji Kamau v National Land Commission & 2 others; Thome ‘V’ Resident Welfare association (Interested Party) (supra) cited by the applicant herein, the Court in addressing the manner in which an applicant invoking the supervisory jurisdiction of the Court should approach the Court held as follows-
“The Mutunga Rules were made under the Constitution of Kenya 2010 and they were limited only to the procedure for enforcement of Fundamental Rights and Freedoms in the bill of rights under Article 22 of the Constitution. Prior to the Mutunga rules, we had The Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006, L.N No. 6 of 2006 (hereinafter referred to as “Gicheru Rules”). Gicheru Rules were made under the old Constitution and they provided for; the procedure for invoking the supervisory jurisdiction of the High Court in Part I, the procedure for invoking the interpretation jurisdiction of the High in part II and the procedure for enforcing violation or threatened violation of fundamental rights and freedoms in part III thereof. When Mutunga Rules were made, it repealed only part III of the Gicheru Rules that was dealing with the procedure for enforcing violation or threatened violation of fundamental rights and freedoms. The rest of Gicheru Rules remained. What this means is that the procedure for invoking the supervisory and interpretation jurisdiction of the High Court remained that in the Gicheru Rules. Rule 2 of Gicheru Rules provides that a person wishing to invoke the supervisory jurisdiction of the court shall do so by way of an Originating Notice of Motion. (emphasis added) This is the procedure through which the Applicant has moved the court. The Applicant’s application is therefore properly before the court ...”
32. I concur with the observation made by Judge S. Okong’o in the aforementioned matter and it is my finding that the applicant’s application is properly before this Court having been brought by way of a Notice of Motion as provided for by the Rules. Consequently, the Preliminary Objection dated 15th September, 2022 fails.
Whether the replying affidavit by the respondent ought to be struck out for being filed out of time and without leave of Court.
33. The applicant submitted that on 7th September, 2022, this Court granted the respondent seven (7) days to file a replying affidavit to the application herein, but the respondent filed the said affidavit twelve (12) days later. He contended that since the replying affidavit was filed out of time and without leave of the Court, it should be struck out. It is not disputed that on 7th September, 2022, the respondent was granted seven (7) days to file and serve a response to the application herein, and the matter would be mentioned on 21st September, 2022.
34. On perusal of this Court’s proceedings of 21st September, 2022, I note that Counsel for the applicant indicated that he was served on 20th September, 2022 at 4.33 p.m., with a Notice of Preliminary Objection, and a replying affidavit by the respondent. Thereafter, he sought leave of the Court to file a further affidavit together with written submissions within fourteen (14) days. On that day, the applicant did not raise the issue that the respondent’s submissions had been filed out of time and without leave of the Court. The said issue has only been raised in his submissions.
35. It is trite that submissions are not pleadings, and if at all the applicant had an issue with the respondent’s replying affidavit, he ought to have raised it in his further affidavit and/or on 21st September, 2022 before the Court gave directions for the filing of written submissions, and reserved a date for ruling. That would have given the respondent notice of the applicant’s objection and this Court would have been given an opportunity to respond to the same.
36. It is therefore this Court’s finding that the contention by the applicant that the respondent’s replying affidavit was filed out of time and without leave of the Court is an afterthought, and having been raised too late in the day, it holds no water. The fact that the applicant sought leave of the Court to file a further affidavit and submissions, and the Court gave directions to that effect, and reserved the matter for ruling, essentially means that the replying affidavit was deemed to be properly on record by the parties and the Court.
If the instant application is merited.
37. As held here before, pursuant to the provisions of Article 165 (6) and (7) of the Constitution of Kenya, 2010, this Court has supervisory jurisdiction over subordinate Courts. The applicant stated that he filed a Notice of Motion application dated 7th March, 2022 seeking to set aside an ex parte judgment in the Trial Court, and the Court granted him an order for stay pending the hearing and determination of the said application on condition that he deposits the decretal sum in a joint account. However, on 19th May, 2022, the Trial Magistrate set aside the said stay orders for non-compliance on the applicant’s part and directed that the application dated 7th March, 2022 be disposed of by way of oral hearing. The respondent on the other hand attempted to make an oral application for cross-examination of the applicant.
38. It is the applicant’s case that on 22nd July, 2022, his Advocates on record attended Court ready to argue an application for cross-examination of the applicant, only for the Court to allege that it had already ruled on the issue on 19th May, 2022. He contended that the Trial Magistrate made orders without hearing him as required under Order 19 Rule 2(1) of the Civil Procedure Rules, 2010 thus infringing on his rights under Article 47 and 50 of the Constitution of Kenya, 2010.
39. The respondent on the other hand contended that on 19th May, 2022, the Trial Court issued directions as to the hearing of the applicant’s application dated 7th March, 2022. She averred that her Advocates on record made an application under Order 19 of the Civil Procedure Rules, 2010 for cross-examination of the applicant on the basis of the averments captured in the supporting affidavit. The Court directed for the application to be heard orally and for each party to be granted an opportunity to make their submissions. She also stated that her Advocates on record filed grounds in support of the prayer for cross-examination of the applicant as required by the law, and as such, it is not true that the applicant’s application dated 25th May, 2022 was unopposed.
40. Order 19 Rule 2 of the Civil Procedure Rules, 2010 provides that –
“(1) 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.
(2) Such attendance shall be in court, unless the deponent is exempted from personal appearance in court, or the Court otherwise directs.”
41. It is evident that in an application, evidence may be given by affidavit however, if a party wishes to cross-examine the deponent of an affidavit, he shall make an application before the Court citing the reasons why he wishes to do so. The Court shall then determine whether or not the cross-examination is necessary and render its ruling. In the case of Republic v Kenya Revenue Authority exparte, Althaus Management & Consultancy Ltd [2015] eKLR quoted with authority by the Court in Khen Kharis Mburu & another v James Karong Ng’ang’a & another [2021] eKLR the Court held that –
“[14.] 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 (emphasis added). 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.” (see also Ahmednasir Abdikadir & Co. Advocates v National Bank of Kenya Limtied (2) [2006] 2 EA 6.)
42. Similarly, in G G R v H P S [2012] eKLR the Court stated the following on the issue of cross-examination of deponents-
“The law has allowed evidence to be proved by way of affidavits under Order 19. But under Rule 2 of the said Order, the Court may order a deponent of an Affidavit to attend court to be cross-examined. It would appear that where allegations of matters touching on fraud, mala fides, authenticity of the facts deponed (sic), bad motive among others are raised, cross-examination of a deponent of an Affidavit may be ordered. This also extends to where there is a conflict of Affidavits on record or where the evidence deponed (sic) to is conflicting in itself. Further, the order for cross examination is a discretionary order but as is in all discretions, the same must be exercised judiciously and not whimsically. There should be special circumstances before ordering a cross examination of a deponent on an Affidavit. The court must feel that adequate material has been placed before it that show that in the interest of justice and to arrive at the truth, it is just and fair to order cross examination.” (Emphasis added).
43. From the foregoing authorities, prior to the Court making an order for cross-examination of a deponent, an application must be made citing the grounds and/or reasons as to why cross-examination of a deponent is necessary. It is not in dispute that the respondent did not file an application before the Trial Court seeking an order to cross-examine the applicant on the contents of his supporting affidavit. On perusal of the lower Court record, it is evident that on 19th May, 2022, the respondent’s Advocates on record expressed his wish to have the applicant cross-examined. He did not however cite any reasons as to why he intended to do so. Thereafter, the Court gave directions that the application dated 7th March, 2022 would be heard interpartes orally, on 22nd July, 2022 given that the respondent wished to cross-examine the deponent.
44. Further, on 22nd July, 2022, the Trial Court declined to allow the applicant’s application to review its directions given on 19th May, 2022, on the ground that it would amount to denying the respondent a chance to seek to cross-examine the respondent, in the Motion dated 7th March, 2022.
45. In the case of Nicholas Kiptoo Arap Salat v Independent Electoral and Boundaries Commission & 7 others [2013] eKLR the Court held as follows on cross-examination of a deponent-
“In my view then, the provisions of Order 19 rule 2(1) of the Civil procedure Rules and rule 12 (2)(c) of the Elections (Parliamentary and County Elections) Petition Rules should be interpreted to mean that the cross-examination of a deponent is not mandatory, but the court may, in the exercise of its discretion and on application by either party, order that a deponent be cross-examined. In the exercise of such discretion, the court should seek the demonstration by the applicant that there are sufficient grounds for making an order for cross-examination. Such demonstration should be by reference to the material contained in the affidavit whose deponent is sought to be cross-examined to show that the affidavit contains disputed matters when examined against the affidavit by the respondent. Where no sufficient basis has been laid the request to cross-examine should be declined.” (Emphasis added).
46. In the absence of a formal application seeking leave to cross-examine the applicant on the contents of his affidavit in support of the application dated 7th March, 2022, the Trial Court had no basis in directing that the applicant and his Counsel attend Court physically for purposes of cross-examination of the applicant, since the respondent ought to have demonstrated the existence of special circumstances to warrant being granted the said order. It is my finding that the grounds in support of the prayer for cross-examination filed after the Court gave orders for cross-examination of the applicant cannot take the place of an application under the provisions of Order 19 Rule 2 of the Civil Procedure Rules, 2010.
47. I agree with Counsel for the applicant that the net effect of the Trial Court’s directions given on 19th May, 2022 and 22nd July, 2022 is that they infringed on the applicant’s rights under Articles 47 and 50 of the Constitution of Kenya, 2010.
48. The upshot is that the application dated 19th August, 2022 is merited. In the premise I make the following orders –
i) The Court orders made by the Trial Court on 19th May, 2022 and 22nd July, 2022 in the case of Felistus Evah Kijala (Suing as the Administrator and Legal Representative of the estate of the late JACKSHAN DISII – Deceased) -v- Archie Mbogho Winston and Yunus Haroon Hussein, Voi SPMCC No. 178 of 2019 are hereby set aside;
ii) The case file is remitted to the Trial Court for directions on 9th July, 2024; and
iii) Costs are awarded to the applicant.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 7th day of June, 2024. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
No appearance for the applicant
No appearance for the respondent
Ms. B. Wokabi – Court Assistant.