Mansukhalal Jesang Maru v Frank Wafula [2021] KEELC 272 (KLR)
The bottom line
#A Kenyan court ruled that new facts in an affidavit entitle the other side to reply, and technical paperwork errors cannot be used to derail a case.
What this practically means
#Executive summary
#Key legal issues
#Leave to respond to new factual matters introduced in a further affidavit
Leave granted to the Respondent to file a further affidavit responding to the new factual issues the Applicant himself introduced
The Applicant admitted that paragraphs 6, 12, 16, 23 and 25 of his further affidavit raised new facts. Natural justice requires that a party not be condemned unheard; the Respondent would be disadvantaged without a chance to reply. The court preferred the softer route of granting leave over suo motu expungement, guided by the overriding objective and Article 159(2)(d).
Whether the Replying Affidavit was improperly on record because it indicated it was drawn and filed by a firm whose status was contested
The Replying Affidavit was properly on record
The court had not yet determined whether M/S R.E. Nyamu & Co. Advocates were properly on record, so the affidavit could not be struck out without pre-judging the Application dated 30/09/2021. The deponent paid for and swore the affidavit himself; the indication of who drew and filed it was a matter of form, cured by Article 159(2)(d).
Whether the deponent should be summoned for cross-examination on his affidavit
Refused; the application was baseless and an abuse of process
Under Order 19 Rule 2 the power is discretionary and requires notice and a laid foundation. Only special circumstances warrant oral cross-examination in interlocutory proceedings. Examining the impugned paragraphs, only paragraph 29 touched on identity, and the passport annextures confirmed the deponent was the Plaintiff, who had already testified. The application was designed to delay.
Legal principles established
#- Where a party raises new factual issues in a further affidavit, the adverse party may be granted leave to respond by further affidavit; expungement is an alternative but discretionary remedy
- Cross-examination of a deponent on an affidavit is a discretionary power, not a right, and requires a proper legal foundation and notice; it is granted only in special circumstances
- Technicalities as to how a document is drawn and filed do not defeat substance, per Article 159(2)(d)
Court orders
#- 1.Leave granted to the Respondent to file a Further Affidavit in response to the new issues raised in the Applicant's Further Affidavit sworn on 18/11/2021, within seven (7) days of the order
- 2.The Applicant to file and serve written submissions on the Application dated 30/09/2021 within five (5) days of service of the Further Affidavit; the Respondent to file and serve his within five (5) days of service of the Applicant's submissions
- 3.Submissions not to exceed four (4) pages, New Times Roman Font 12, 1.5 spacing
- 4.The oral Application for the Replying Affidavit to be found improperly on record and for the deponent to be summoned for cross-examination dismissed with costs to the Respondent
- 5.The Application dated 30/09/2021 to be heard by way of written submissions on 31/1/2022
- Jurisdiction invoked
- Environment and Land Court Act, Section 3; Civil Procedure Act, Section 1A(1); Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mansukhalal Jesang Maru v Frank Wafula [2021] KEELC 272 (KLR)", Case Analysis (2021). Not stated in the judgment (Environment and Land Court, Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/272/eng@2021-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.