Introduction and Background
1. The matter before the Court is the Plaintiffs’ Notice of Motion Application dated 27th October, 2023, brought under, inter alia, Order 19 of the Civil Procedure Rules, seeking leave to cross-examine the 2nd Defendant on the contents of his replying affidavit sworn on 25th September, 2023, and to similarly cross-examine the deponent of two affidavits sworn by Samwel Wamaitha on behalf of the 1st Defendant, dated 18th July, 2023 and 21st July, 2023.
2. The purpose of the cross-examination, as advanced by the Plaintiffs, is to interrogate the veracity and credibility of the statements made therein, particularly in relation to the alleged purchase and auction of a motor vehicle and issues surrounding the treatment of unsecuritized property.
3. The Application is supported by the affidavit of Jackson Waiganjo Kamau, a director of the Plaintiffs, sworn on the same date. The 1st Defendant opposed the Application by way of Grounds of Opposition dated 17th October 2023, while the 2nd Defendant filed a replying affidavit dated 3rd November, 2023. The Application was canvassed through written submissions which I have duly considered.
Issues for Determination
4. The sole issue for determination is whether the Plaintiffs have laid a sufficient basis to warrant the cross-examination of the 2nd Defendant and the deponent of the 1st Defendant’s affidavits under Order 19 Rule 2(1) of the Civil Procedure Rules.
Analysis and Determination
5. Order 19 Rule 2(1) provides that:
“Upon any application, evidence may be given by affidavit, but the court may, in the instance of either party, order the attendance for cross-examination of the deponent.”
6. The discretion conferred upon the Court under this provision is to be exercised judicially. As the Court observed in Kibaki v Moi & Another (Election Petition No. 1 of 1998):
“The High Court is vested with discretionary power to allow the cross-examination of a deponent... however, this power will only be exercised after a proper basis has been laid. If the facts of the deponent are not disputed, cross-examination will not be ordered.”
7. Similarly, in Hudson Enterprises Ltd v Kenya Cold Storage (Foods) Ltd & 14 Others [2006] KEHC 3213 (KLR), the Court reiterated:
“The right to cross-examine a deponent on his affidavit is discretionary. Like all judicial discretions it has to be exercised judicially and not whimsically or capriciously.”
8. In the present case, the Plaintiffs seek to impugn the credibility of numerous paragraphs across the three affidavits. These include issues on the alleged online auction, compliance with court orders, the application of the Moveable Property Security Rights Act, and the purported handling of unsecuritized property. However, the Defendants have asserted that the affidavits are based on facts within the knowledge of the deponents and that their sources have been disclosed.
9. As held by Muchelule J. (as he then was) in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2013] KEHC 399 (KLR):
“The Court should seek the demonstration by the applicant that there are sufficient grounds for making an order for cross-examination... by reference to the material contained in the affidavit to show that it contains disputed matters... Where no sufficient basis has been laid the request to cross-examine should be declined.”
10. Having perused the impugned affidavits, I find that the issues raised are factual assertions based on disclosed sources and knowledge. The Plaintiffs have not rebutted or challenged these facts through any further or supplementary affidavits. I am not satisfied that the material presented meets the threshold contemplated under Order 19 Rule 2(1).
11. Moreover, I am guided by the overriding objective of the Court to facilitate the just, expeditious and efficient disposal of cases. I note that several of the pending issues in the suit have already been compromised through a consent order dated 15th August, 2024, save for the dispute surrounding the motor vehicle and drilling equipment. Permitting cross-examination at this juncture would only serve to protract proceedings unnecessarily.
12. In my considered view, no sufficient or compelling basis has been laid to justify invoking the Court’s discretionary jurisdiction to order the cross-examination sought.
Conclusion and Disposition
13. For the foregoing reasons, I find that the Plaintiffs’ Application dated 27th October, 2023 is without merit. The same is accordingly dismissed with costs to the Defendants.
1. The matter before the Court is the Plaintiffs’ Notice of Motion Application dated 27th October, 2023, brought under, inter alia, Order 19 of the Civil Procedure Rules, seeking leave to cross-examine the 2nd Defendant on the contents of his replying affidavit sworn on 25th September, 2023, and to similarly cross-examine the deponent of two affidavits sworn by Samwel Wamaitha on behalf of the 1st Defendant, dated 18th July, 2023 and 21st July, 2023.
2. The purpose of the cross-examination, as advanced by the Plaintiffs, is to interrogate the veracity and credibility of the statements made therein, particularly in relation to the alleged purchase and auction of a motor vehicle and issues surrounding the treatment of unsecuritized property.
3. The Application is supported by the affidavit of Jackson Waiganjo Kamau, a director of the Plaintiffs, sworn on the same date. The 1st Defendant opposed the Application by way of Grounds of Opposition dated 17th October 2023, while the 2nd Defendant filed a replying affidavit dated 3rd November, 2023. The Application was canvassed through written submissions which I have duly considered.
Issues for Determination
4. The sole issue for determination is whether the Plaintiffs have laid a sufficient basis to warrant the cross-examination of the 2nd Defendant and the deponent of the 1st Defendant’s affidavits under Order 19 Rule 2(1) of the Civil Procedure Rules.
Analysis and Determination
5. Order 19 Rule 2(1) provides that:
“Upon any application, evidence may be given by affidavit, but the court may, in the instance of either party, order the attendance for cross-examination of the deponent.”
6. The discretion conferred upon the Court under this provision is to be exercised judicially. As the Court observed in Kibaki v Moi & Another (Election Petition No. 1 of 1998):
“The High Court is vested with discretionary power to allow the cross-examination of a deponent... however, this power will only be exercised after a proper basis has been laid. If the facts of the deponent are not disputed, cross-examination will not be ordered.”
7. Similarly, in Hudson Enterprises Ltd v Kenya Cold Storage (Foods) Ltd & 14 Others [2006] KEHC 3213 (KLR), the Court reiterated:
“The right to cross-examine a deponent on his affidavit is discretionary. Like all judicial discretions it has to be exercised judicially and not whimsically or capriciously.”
8. In the present case, the Plaintiffs seek to impugn the credibility of numerous paragraphs across the three affidavits. These include issues on the alleged online auction, compliance with court orders, the application of the Moveable Property Security Rights Act, and the purported handling of unsecuritized property. However, the Defendants have asserted that the affidavits are based on facts within the knowledge of the deponents and that their sources have been disclosed.
9. As held by Muchelule J. (as he then was) in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2013] KEHC 399 (KLR):
“The Court should seek the demonstration by the applicant that there are sufficient grounds for making an order for cross-examination... by reference to the material contained in the affidavit to show that it contains disputed matters... Where no sufficient basis has been laid the request to cross-examine should be declined.”
10. Having perused the impugned affidavits, I find that the issues raised are factual assertions based on disclosed sources and knowledge. The Plaintiffs have not rebutted or challenged these facts through any further or supplementary affidavits. I am not satisfied that the material presented meets the threshold contemplated under Order 19 Rule 2(1).
11. Moreover, I am guided by the overriding objective of the Court to facilitate the just, expeditious and efficient disposal of cases. I note that several of the pending issues in the suit have already been compromised through a consent order dated 15th August, 2024, save for the dispute surrounding the motor vehicle and drilling equipment. Permitting cross-examination at this juncture would only serve to protract proceedings unnecessarily.
12. In my considered view, no sufficient or compelling basis has been laid to justify invoking the Court’s discretionary jurisdiction to order the cross-examination sought.
Conclusion and Disposition
13. For the foregoing reasons, I find that the Plaintiffs’ Application dated 27th October, 2023 is without merit. The same is accordingly dismissed with costs to the Defendants.