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ELCDismissedEnvironment & Land Petition 11 of 2017· [2022] KEELC 13821 (KLR)

MAT International Terminal Limited v Multiple ICD (K) Limited & 4 others

Environment and Land Court
25 October 2022
NMN.A. Matheka
647 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled that contradictory sworn statements should be tested through cross-examination at trial, not struck out early.

What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Mombasa (N.A. Matheka, J) determined an oral application made on September 27, 2022 by counsel for the 1st Respondent, Multiple ICD (K) Limited, seeking to strike out a Replying Affidavit dated July 7, 2022 sworn by Samuel Mwangi, Land Registrar Mombasa. The ground was that the affidavit contradicted an earlier replying affidavit sworn by Renson Mulele Ingonga. Counsel relied on Order 2 Rule 6 of the Civil Procedure Rules, Rules 15-19 of the Mutunga Rules and St Patrick Hill School Limited v Bank of Africa Kenya Limited. The court applied its own earlier-position authority, Mombasa Cement Limited v Salim Masdud Abdalla, holding that where two affidavits on oath conflict, they should not be resolved at an interlocutory stage by striking out, since that would amount to a mini-trial; the proper device is cross-examination of the deponents at trial. Notably, on February 9, 2022 the court had already directed that parties proceed by viva voce evidence and that deponents of affidavits appear for cross-examination. The court held it would, at final determination, take judicial notice of the contradictions and assess the weight and reliability of both affidavits. The application was accordingly dismissed. No costs order was made.

Key legal issues

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01

Whether a contradictory subsequent replying affidavit should be struck out

Holding

The application to strike out was dismissed; contradictions go to evidential weight to be assessed at trial after cross-examination.

Reasoning

The court adopted the reasoning in Mombasa Cement Ltd v Salim Masdud Abdalla that resolving conflicts in affidavit evidence at interlocutory stage amounts to a mini-trial and risks definitive conclusions without the benefit of witnesses tested in cross-examination. Since leave had already been granted to proceed by viva voce evidence and for deponents to appear and be cross-examined, the proper course was trial, with the court taking judicial notice of the contradictions when assessing weight and reliability.

p. 2

Legal principles established

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  • Contradictions between two affidavits on record should be resolved by subjecting the deponents to cross-examination, not by striking out at interlocutory stage

Court orders

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  1. 1.The oral application to strike out the Replying Affidavit dated July 7, 2022 is dismissed
  2. 2.Contradictions between the two affidavits to be tested through cross-examination of the deponents at trial

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 6
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure RulesRules 15-19

Cases cited (3)

  • St Patrick Hill School Limited v Bank of Africa Kenya Limited
    (2018) eKLR

    Relied on by 1st Respondent in support of striking out contradictory affidavit

  • Mombasa Cement Limited v Salim Masdud Abdalla & 4 others
    (2018) eKLR

    Proposition that conflicting affidavits should be tested at trial by cross-examination, not resolved at interlocutory stage

  • Vivo Energy Kenya Limited v Maloba Petrol Station Limited & 3 Others
    (2015) eKLR

    Cross-examination as the time-tested device for testing truth or falsity of evidence

Jurisdiction invoked
Original constitutional petition jurisdiction of the Environment and Land Court

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, "MAT International Terminal Limited v Multiple ICD (K) Limited & 4 others", Case Analysis (2022). Environment & Land Petition 11 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13821/eng@2022-10-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.