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ELCAllowedNotice of Motion dated 24.5.2016 (in contempt application dated 28th April, 2016)· [2016] KEELC 805 (KLR)

Joseph Yator Chepyegon v County Government Of Baringo & another [2016] KEELC 805 (KLR)

High Court of Kenya
25 May 2016
550 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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By Notice of Motion dated 24th May 2016, the 1st defendant sought review, variation or setting aside of orders made on 20th May 2016, arguing an error apparent on the face of the record: the court had issued summons to Stella Kereto (County Secretary), Daudi Aengwo (Sub County Administrator, Baringo North) and Daniel Chepchieng (area Chief) to attend court for cross-examination in the plaintiff's contempt application dated 28th April 2016, yet none of the three was a party to the suit, none had deponed to any affidavit, and none had been cited for contempt. In its supporting affidavit, the applicant explained that the summons for cross-examination had properly been sought for two process servers, Jackson Cheburet and Patrick Ongeri, who had sworn affidavits of service, but that plaintiff's counsel had misled the court into extending summons to the three officials. The court found that the three persons were not cited for contempt and had deponed no affidavit, so there was no basis for their cross-examination or attendance. Applying Order 19 rule 2(1) of the Civil Procedure Rules, 2010, the court held that although its discretion to order attendance of a deponent is wide, it must be exercised in good faith and not capriciously. The summons were found to have been made in error and were set aside, with no orders as to costs.

Key legal issues

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01

Scope of the court's discretion under Order 19 rule 2(1) to order attendance of a deponent for cross-examination

Holding

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.

Reasoning

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.

p. 2
02

Whether the summons of 20th May 2016 were issued in error apparent on the face of the record

Holding

Yes - the court found the summons to the three non-parties who had not sworn affidavits were issued in error and set them aside.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The summons issued to Stella Kereto, Daudi Aengwo and Daniel Chepchieng were made in error and are set aside
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 19 rule 2(1)
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.