1. The applicants filed a Notice of Motion application dated 12/4/2024 under Certificate of Urgency seeking orders of stay of proceedings against plea taking, arraignment, reading of charges, continued prosecution of the applicants in Criminal Case No. E311 of 2024 Republic v Ali Abdallah Ragude and Another pending the hearing and determination of the petition filed alongside the application.
2. On 17/4/2025 this court (Hon. Justice Gregory Mutai), granted interim orders of stay of proceedings pending inter partes hearing on 2/5/2024. On the date for inter partes hearing the court being satisfied that the application was duly served but there was no response thereto granted the orders sought.
3. On 22/5/2024, the 4th respondent Alice Muthoni Kingori filed an application by way of Notice of Motion dated 16/5/2024 under certificate of urgency seeking orders that this court exercises its supervisory power of revision and revise, vary and set aside the ex parte order issued on 17/4/2024 and the order issued on 2/5/2024 ex debito justitiae and also that the court strikes out the application dated 12/4/2024.
4. When the matter came up for mention for directions, learned counsels for the respondents kept insisting that they had never been served with the Petitioner’s application dated 12/4/2024. Learned counsel for the Petitioner’s Mr. Egunza on his part insisted that he had served the application and the petition and filed the requisite affidavits of service.
5. In order to address all the issues conclusively, the court directed that the petitioners serve their application dated 12/4/2024 upon the respondents and that the two applications be heard concurrently and a ruling given.
6. The matter was fixed for ruling on 29/1/2025. But the Petitioner filed an application dated 20/1/2025 to arrest the ruling scheduled for 29/1/2025 to enable the Petitioners and one Irene Bernadette Waithira t/a Irene Maina & Co. Advocates to tender fresh evidence and do the same by giving viva voce evidence in court.
7. This court directed that this application be heard by way of written submissions and a ruling delivered together with the ruling on the two earlier applications. However, upon considering the three applications and their import, I find that it is appropriate to deliver the ruling in the latest application first then move to the other two which will be considered together since the second is more or less a response to the fist.
8. This ruling therefore is for the Petitioner’s application dated 20/1/2025. The application seeks for orders that the court arrests the ruling scheduled for 29/1/2025 (now passed) and grants leave to the applicants in this matter Irene Bernadette Waithira t/a Irene Maina & co. Advocates, David Mureithi Kanyi & Kee Plants (K.P) Properties Ltd to reopen their case and present a fresh bundle of documents that would assist the court to administer justice expeditiously and upon grant of such leave the Petitioners be allowed to tender the fresh evidence by way of viva voce evidence upon which they will be cross-examined and that this will assist the court to administer justice judiciously.
9. The application is expressed to be brought under sections 17 and 80 of the Evidence Act (Cap. 80) Laws of Kenya, Articles 159(2) of the Constitution of Kenya, Inherent power and jurisdiction of the Court and other enabling provisions of the law.
10. The grounds in support of the application are as outlined on the face thereof as well as in the supporting affidavit of Ali Abdalla Ragude sworn on 20/1/2025 on his behalf and on behalf of the other petitioners.
11. The grounds on the face of the application are that there has been gross misrepresentation of facts and evidence especially as concerns the role of the advocate-client relationship as regards the sale and purchase of Maissonette No. 57 and 58 (Two bedrooms with parking at Phase 2 Kenya Projects Bamburi Parkside Off-Plan) on parcel No. 343/I/MN which touches on the integral part of the sale and purchase agreement, proprietary interest therewith and payments factored in respect thereof. It is therefore important that documents pertinent to establishing facts that are of importance to the matter be placed before this court for its consideration. It is also averred in the grounds that parties have not yet filed submissions to the application and therefore no prejudice will be suffered if the application is allowed. Further that the failure to make available the documents was not deliberate but that they were held at the Lands registry and it was not possible to obtain them at the time of filing the application.
12. In the supporting affidavit the deponent has annexed what he terms as a trove of evidence which is a letter dated 1/12/2024 from Irene Maina & Company Advocates to Alice Kingori, Ref. House No 57 and 58 with contents for the addressee to note that KShs 160,000/= was still outstanding and she should make arrangements to clear this sum also that some M-Pesa payments were made by one Wanjohi who had indicated that they were not made on behalf of the addressee and therefore should get Wanjohi to confirm and at the same time the addressee should make efforts to clear the balance. The letter is accompanied by a schedule of payments showing a balance of KShs 160,000/= at the end.
13. The applicants have however not indicated when and how this document was retrieved from the Lands registry.
14. Since the application was intended to arrest a ruling scheduled for 29/1/2025, the court certified the same urgent and directed that it be served upon the respondents and fixed it for mention for directions on the same date. The court directed that the respondents file responses to the application and it be heard by way of written submissions. That inevitably caused the scheduled ruling to be postponed to the chagrin of the respondents but to the delight of the Petitioners/applicants who had secured an adjournment of the ruling without even arguing their application.
15. Only the 4th respondent filed a replying affidavit sworn by Timothy Mkalla, advocate in opposition to the application. He deposes that the application has no merit because: a) It neither introduces new evidence from the local Lands Registry nor does it seek to correct an error of fact or law present on the face of court record; b) One of the parties moving the Court as asserted under paragraph 3 of the Notice of Motion dated 20/01/2025 namely IRENE WAITHIRA is not a party to this application and cannot adduce evidence. c) It discloses no triable issues to reopen a case hence it is only meant to prejudice, embarrass and/or delay a fair trial; and d) It is made up of unjustified depositions contrary to the allegations raised hence an abuse of Court process. He has expounded the same in the subsequent paragraphs of the reply.
16. I have considered the application and the response thereto in opposition by the 4th respondent. The only issue for determination is whether or not the court should allow the respondents to introduce new evidence to their earlier application dated 12/4/2024.
17. The High Court while considering an application by the plaintiff on the issue of whether to reopen a case for the plaintiff for hearing to adduce additional evidence in the case of Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & another [2015] eKLR referred to a Ugandan High Court, Commercial Division case of Simba Telecom v Karuhanga & Anor (Misc Application No. 451 of 2014) [2014] UGHC 98 which dealt with an application to re-open a case for purposes of submitting fresh evidence and where the court referred to an Australian case Smith versus South Wales Bar Association (1992) 176 CLR 256, where it was held that:
“If an application is made to reopen on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not recorded, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one which reasons for the judgment have been delivered. In the latter situations the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to reopen should be exercised.”
The Ugandan Court in the case SIMBA TELECOM (supra) held thus:
“I agree with the holding in the case of Smith Versus South Wales Bar Association (1992) 176 CLR 256, where it was held that the question of whether additional evidence should be taken at the trial is considered separately from the question of whether the case should be reopened. Consequently, even after the case has been reopened, the court retains its discretionary powers whether to admit any piece of evidence or not.”
18. Order 19 Rule 2 of the Civil Procedure Rules states which provides as follows on how evidence may be tendered by affidavit:
“(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.”
19. From this provision, it is apparent that the deponent of an affidavit received in an application may be cross-examined on the contents of the affidavit. This is at the discretion of the court. The document sought to be introduced herein seems to have been made by one Irene Bernadette Waithira presumably of Irene Mwangi & Co. Advocates. She has not sworn any affidavit in this matter upon whose contents she can be cross-examined. Instead the application is made as if she is a party to the proceedings of which she is not. There is no provision in law for her to appear in this application to adduce evidence viva voce and then be cross-examined thereon. If the Petitioners wished to put in further evidence on their application dated 17/4/2024 they would have sought leave to file a supplementary affidavit. Even then, it would not be automatic for her to get that opportunity to be cross-examined on such an affidavit. I am persuaded to follow the High Court decision in Kwacha Communications Limited & another v Pindoria Holdings Limited & another [2022] eKLR where, while considering this issue, Chitembwe, J. held that:
“Allowing cross-examination on an affidavit is a matter of discretion, and cross-examination should be avoided unless exceptional circumstances exist. Any party wishing to cross-examine a deponent must convince the court that the cross-examination is justified. Given that Order 19 permits the use of affidavits as evidence, courts should avoid allowing cross-examination of the deponent's affidavits unless the circumstances merit it. Additionally, this action may result in increased costs due to cross-examination during interlocutory proceedings and unduly prolonging the suit, which is not envisioned in sections 1A and 1B of the Civil Procedure Act.”
20. The learned Judge also considered the case of G G R vs. H-P S [2012] eKLR, where the court outlined instances where a deponent may be subjected to cross-examination:
“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 fats 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.”
21. I do not find any special circumstances under which the cross-examination would be had given that no allegation as outlined in this later decision has been made against any party in the present proceedings. It is interesting that the Petitioners seek to introduce evidence and then invite the respondents to cross-examine them on the same. What is there that they cannot just say straightaway in an affidavit instead of seeking viva voce evidence and then to be cross-examined? As pointed out in the affidavit of counsel for the 4th respondents, Irene Bernadette Waithira is not a party to these proceedings. She could be called as a witness to adduce evidence at the right time if need be.
22. I have considered the grounds in support of the application and the supporting affidavit and I do not find anything that even alludes to discovery of new evidence. If the Petitioners have evidence to present to court, the main petition is yet to be heard determined. They can seek to produce those documents in the prosecution of the main petition.
23. I find that the present application lacks merit and the same is dismissed with costs to the 4th Respondent.
24. Orders accordingly.
Ruling dated, signed and delivered in Open Court and on the Virtual Platform, Teams this 27th day of February 2025.
HON. JUSTICE ANDAYI W. F.
JUDGE
In the presence of: -
Egunza for the Petitioner/Applicant
Mwanaszumba (Ms) for 1st and 2nd Respondents
Vallerie (Ms) h/b for Mr. Ngiri for the 3rd Respondent
Mangale for 4th Respondent
Johnson h/b for Etropia - Court Assistant
2. On 17/4/2025 this court (Hon. Justice Gregory Mutai), granted interim orders of stay of proceedings pending inter partes hearing on 2/5/2024. On the date for inter partes hearing the court being satisfied that the application was duly served but there was no response thereto granted the orders sought.
3. On 22/5/2024, the 4th respondent Alice Muthoni Kingori filed an application by way of Notice of Motion dated 16/5/2024 under certificate of urgency seeking orders that this court exercises its supervisory power of revision and revise, vary and set aside the ex parte order issued on 17/4/2024 and the order issued on 2/5/2024 ex debito justitiae and also that the court strikes out the application dated 12/4/2024.
4. When the matter came up for mention for directions, learned counsels for the respondents kept insisting that they had never been served with the Petitioner’s application dated 12/4/2024. Learned counsel for the Petitioner’s Mr. Egunza on his part insisted that he had served the application and the petition and filed the requisite affidavits of service.
5. In order to address all the issues conclusively, the court directed that the petitioners serve their application dated 12/4/2024 upon the respondents and that the two applications be heard concurrently and a ruling given.
6. The matter was fixed for ruling on 29/1/2025. But the Petitioner filed an application dated 20/1/2025 to arrest the ruling scheduled for 29/1/2025 to enable the Petitioners and one Irene Bernadette Waithira t/a Irene Maina & Co. Advocates to tender fresh evidence and do the same by giving viva voce evidence in court.
7. This court directed that this application be heard by way of written submissions and a ruling delivered together with the ruling on the two earlier applications. However, upon considering the three applications and their import, I find that it is appropriate to deliver the ruling in the latest application first then move to the other two which will be considered together since the second is more or less a response to the fist.
8. This ruling therefore is for the Petitioner’s application dated 20/1/2025. The application seeks for orders that the court arrests the ruling scheduled for 29/1/2025 (now passed) and grants leave to the applicants in this matter Irene Bernadette Waithira t/a Irene Maina & co. Advocates, David Mureithi Kanyi & Kee Plants (K.P) Properties Ltd to reopen their case and present a fresh bundle of documents that would assist the court to administer justice expeditiously and upon grant of such leave the Petitioners be allowed to tender the fresh evidence by way of viva voce evidence upon which they will be cross-examined and that this will assist the court to administer justice judiciously.
9. The application is expressed to be brought under sections 17 and 80 of the Evidence Act (Cap. 80) Laws of Kenya, Articles 159(2) of the Constitution of Kenya, Inherent power and jurisdiction of the Court and other enabling provisions of the law.
10. The grounds in support of the application are as outlined on the face thereof as well as in the supporting affidavit of Ali Abdalla Ragude sworn on 20/1/2025 on his behalf and on behalf of the other petitioners.
11. The grounds on the face of the application are that there has been gross misrepresentation of facts and evidence especially as concerns the role of the advocate-client relationship as regards the sale and purchase of Maissonette No. 57 and 58 (Two bedrooms with parking at Phase 2 Kenya Projects Bamburi Parkside Off-Plan) on parcel No. 343/I/MN which touches on the integral part of the sale and purchase agreement, proprietary interest therewith and payments factored in respect thereof. It is therefore important that documents pertinent to establishing facts that are of importance to the matter be placed before this court for its consideration. It is also averred in the grounds that parties have not yet filed submissions to the application and therefore no prejudice will be suffered if the application is allowed. Further that the failure to make available the documents was not deliberate but that they were held at the Lands registry and it was not possible to obtain them at the time of filing the application.
12. In the supporting affidavit the deponent has annexed what he terms as a trove of evidence which is a letter dated 1/12/2024 from Irene Maina & Company Advocates to Alice Kingori, Ref. House No 57 and 58 with contents for the addressee to note that KShs 160,000/= was still outstanding and she should make arrangements to clear this sum also that some M-Pesa payments were made by one Wanjohi who had indicated that they were not made on behalf of the addressee and therefore should get Wanjohi to confirm and at the same time the addressee should make efforts to clear the balance. The letter is accompanied by a schedule of payments showing a balance of KShs 160,000/= at the end.
13. The applicants have however not indicated when and how this document was retrieved from the Lands registry.
14. Since the application was intended to arrest a ruling scheduled for 29/1/2025, the court certified the same urgent and directed that it be served upon the respondents and fixed it for mention for directions on the same date. The court directed that the respondents file responses to the application and it be heard by way of written submissions. That inevitably caused the scheduled ruling to be postponed to the chagrin of the respondents but to the delight of the Petitioners/applicants who had secured an adjournment of the ruling without even arguing their application.
15. Only the 4th respondent filed a replying affidavit sworn by Timothy Mkalla, advocate in opposition to the application. He deposes that the application has no merit because: a) It neither introduces new evidence from the local Lands Registry nor does it seek to correct an error of fact or law present on the face of court record; b) One of the parties moving the Court as asserted under paragraph 3 of the Notice of Motion dated 20/01/2025 namely IRENE WAITHIRA is not a party to this application and cannot adduce evidence. c) It discloses no triable issues to reopen a case hence it is only meant to prejudice, embarrass and/or delay a fair trial; and d) It is made up of unjustified depositions contrary to the allegations raised hence an abuse of Court process. He has expounded the same in the subsequent paragraphs of the reply.
16. I have considered the application and the response thereto in opposition by the 4th respondent. The only issue for determination is whether or not the court should allow the respondents to introduce new evidence to their earlier application dated 12/4/2024.
17. The High Court while considering an application by the plaintiff on the issue of whether to reopen a case for the plaintiff for hearing to adduce additional evidence in the case of Samuel Kiti Lewa v Housing Finance Co. of Kenya Ltd & another [2015] eKLR referred to a Ugandan High Court, Commercial Division case of Simba Telecom v Karuhanga & Anor (Misc Application No. 451 of 2014) [2014] UGHC 98 which dealt with an application to re-open a case for purposes of submitting fresh evidence and where the court referred to an Australian case Smith versus South Wales Bar Association (1992) 176 CLR 256, where it was held that:
“If an application is made to reopen on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not recorded, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one which reasons for the judgment have been delivered. In the latter situations the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to reopen should be exercised.”
The Ugandan Court in the case SIMBA TELECOM (supra) held thus:
“I agree with the holding in the case of Smith Versus South Wales Bar Association (1992) 176 CLR 256, where it was held that the question of whether additional evidence should be taken at the trial is considered separately from the question of whether the case should be reopened. Consequently, even after the case has been reopened, the court retains its discretionary powers whether to admit any piece of evidence or not.”
18. Order 19 Rule 2 of the Civil Procedure Rules states which provides as follows on how evidence may be tendered by affidavit:
“(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.”
19. From this provision, it is apparent that the deponent of an affidavit received in an application may be cross-examined on the contents of the affidavit. This is at the discretion of the court. The document sought to be introduced herein seems to have been made by one Irene Bernadette Waithira presumably of Irene Mwangi & Co. Advocates. She has not sworn any affidavit in this matter upon whose contents she can be cross-examined. Instead the application is made as if she is a party to the proceedings of which she is not. There is no provision in law for her to appear in this application to adduce evidence viva voce and then be cross-examined thereon. If the Petitioners wished to put in further evidence on their application dated 17/4/2024 they would have sought leave to file a supplementary affidavit. Even then, it would not be automatic for her to get that opportunity to be cross-examined on such an affidavit. I am persuaded to follow the High Court decision in Kwacha Communications Limited & another v Pindoria Holdings Limited & another [2022] eKLR where, while considering this issue, Chitembwe, J. held that:
“Allowing cross-examination on an affidavit is a matter of discretion, and cross-examination should be avoided unless exceptional circumstances exist. Any party wishing to cross-examine a deponent must convince the court that the cross-examination is justified. Given that Order 19 permits the use of affidavits as evidence, courts should avoid allowing cross-examination of the deponent's affidavits unless the circumstances merit it. Additionally, this action may result in increased costs due to cross-examination during interlocutory proceedings and unduly prolonging the suit, which is not envisioned in sections 1A and 1B of the Civil Procedure Act.”
20. The learned Judge also considered the case of G G R vs. H-P S [2012] eKLR, where the court outlined instances where a deponent may be subjected to cross-examination:
“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 fats 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.”
21. I do not find any special circumstances under which the cross-examination would be had given that no allegation as outlined in this later decision has been made against any party in the present proceedings. It is interesting that the Petitioners seek to introduce evidence and then invite the respondents to cross-examine them on the same. What is there that they cannot just say straightaway in an affidavit instead of seeking viva voce evidence and then to be cross-examined? As pointed out in the affidavit of counsel for the 4th respondents, Irene Bernadette Waithira is not a party to these proceedings. She could be called as a witness to adduce evidence at the right time if need be.
22. I have considered the grounds in support of the application and the supporting affidavit and I do not find anything that even alludes to discovery of new evidence. If the Petitioners have evidence to present to court, the main petition is yet to be heard determined. They can seek to produce those documents in the prosecution of the main petition.
23. I find that the present application lacks merit and the same is dismissed with costs to the 4th Respondent.
24. Orders accordingly.
Ruling dated, signed and delivered in Open Court and on the Virtual Platform, Teams this 27th day of February 2025.
HON. JUSTICE ANDAYI W. F.
JUDGE
In the presence of: -
Egunza for the Petitioner/Applicant
Mwanaszumba (Ms) for 1st and 2nd Respondents
Vallerie (Ms) h/b for Mr. Ngiri for the 3rd Respondent
Mangale for 4th Respondent
Johnson h/b for Etropia - Court Assistant