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ELCDismissedChamber Summons dated 23rd October 2017 (in the petition over Plot No. 1610/1/MN)· [2018] KEELC 3086 (KLR)
Michael Andrew Suter v Leila James Van Rosi & 5 others [2018] KEELC 3086 (KLR)
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·~6 min to read original · ~4 min briefThe bottom line
#The High Court in Mombasa ruled that forcing someone to be cross-examined on their affidavit is a privilege courts grant sparingly, not a right.
What this practically means
#Executive summary
#The Petitioner/Applicant brought a chamber summons dated 23rd October 2017 under Sections 1A and 3A of the Civil Procedure Act and Order 19 Rules 1 and 2 of the Civil Procedure Rules seeking an order that Abdulhakim Abdalla, the 4th Respondent, attend court for cross-examination on his affidavit sworn on 14th September 2017 in support of the 4th Respondent's application to strike out the petition. The Applicant alleged the deponent lied under oath about encumbrances affecting Plot No. 1610/1/MN and failed to disclose knowledge of the Petitioner's claim of title, including a caveat emptor published in a local daily, before purchasing and developing the plot. The 4th Respondent opposed, contending the application was an afterthought, an abuse of process, and a backdoor attempt to fill gaps, since his averments had not been controverted by further affidavit and no special circumstances were demonstrated. The application was canvassed by written submissions. Relying on Order 19 Rule 2 and authority that cross-examination of a deponent is discretionary and not a right, and requires a proper legal foundation or special circumstances, the court found the Applicant had filed no further affidavit disputing the deponent's averments and that no diametrically opposed disputed facts or exceptional circumstances justified cross-examination. The court declined the order sought and dismissed the chamber summons with costs to the 4th Respondent.
Key legal issues
#01
Whether the Applicant established sufficient reason or special circumstances to warrant cross-examination of the 4th Respondent on his affidavit
Holding
The application was dismissed; no exceptional circumstances or proper basis was shown
Reasoning
The court noted that cross-examination on affidavit under Order 19 Rule 2 is discretionary and not a right. The Applicant alleged the deponent lied about encumbrances and caveat emptor notice, but filed no further affidavit disputing the deponent's averments. Without diametrically opposed disputed facts requiring testing, the court declined to exercise its discretion in favour of cross-examination.
p. 2
Legal principles established
#- Cross-examination of a deponent on affidavit is discretionary and requires a proper legal foundation or special circumstances, not a matter of right
- Where the deponent's averments are not controverted by a further affidavit, cross-examination to fill gaps will not be allowed
Court orders
#- 1.The chamber summons dated 23rd October 2017 is dismissed with costs to the 4th Respondent
- 2.The court declines to direct that Abdulhakim Abdalla be availed for cross-examination on his affidavit sworn on 14th September 2017
- Jurisdiction invoked
- Sections 1A and 3A of the Civil Procedure Act and Order 19 Rules 1 and 2 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Andrew Suter v Leila James Van Rosi & 5 others [2018] KEELC 3086 (KLR)", Case Analysis (2018). Chamber Summons dated 23rd October 2017 (in the petition over Plot No. 1610/1/MN). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3086/eng@2018-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.