Joseph Yator Chepyegon v County Government Of Baringo & another [2016] KEELC 805 (KLR)
The bottom line
#Kenya's High Court confirmed you cannot be summoned for cross-examination in a case unless you swore an affidavit or are a party to it.
What this practically means
#Executive summary
#Key legal issues
#Scope of the court's discretion under Order 19 rule 2(1) to order attendance of a deponent for cross-examination
The discretion is wide but must be exercised in good faith and not capriciously; it applies to deponents of affidavits, and persons who have not deponed to any affidavit cannot be cross-examined.
The court acknowledged that Order 19 rule 2(1) of the Civil Procedure Rules, 2010 confers a wide discretion to order attendance of a deponent for cross-examination on the application of either party. However, the discretion must be exercised in good faith, not on the spur of the moment or merely because the other side has successfully done so. Since the three named persons were not cited for contempt and had deponed no affidavits, there was no legal basis for their cross-examination, and the summons was erroneous.
Whether the summons of 20th May 2016 were issued in error apparent on the face of the record
Yes - the court found the summons to the three non-parties who had not sworn affidavits were issued in error and set them aside.
The applicant demonstrated that Stella Kereto, Daudi Aengwo and Daniel Chepchieng were neither parties to the suit nor deponents of any affidavit in the proceedings, and had not been cited in the contempt application. Cross-examination of third parties who have tendered no evidence has no legal basis. The court therefore found the summons were made in error and set them aside, with no orders as to costs.
Legal principles established
#- A person who is not a party to the suit and has not deponed to any affidavit cannot be summoned for cross-examination; attendance for cross-examination must rest on a deponent's affidavit.
Court orders
#- 1.The summons issued to Stella Kereto, Daudi Aengwo and Daniel Chepchieng were made in error and are set aside
- 2.No orders as to costs
- Jurisdiction invoked
- Inherent review/vary power of the court over its own orders; Order 19 rule 2(1) of the Civil Procedure Rules, 2010 considered
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Yator Chepyegon v County Government Of Baringo & another [2016] KEELC 805 (KLR)", Case Analysis (2016). Notice of Motion dated 24.5.2016 (in contempt application dated 28th April, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/805/eng@2016-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.