Vale Royal Trust & another v Rwika Aggregates Co. Ltd & 6 others
The bottom line
#A Kenyan court ruled that a notice to cross-examine an affidavit deponent isn't invalid just because it doesn't specify which paragraphs will be challenged.
What this practically means
#Executive summary
#Key legal issues
#Defect in notice to cross-examine for not specifying paragraphs
The omission is not fatal; the court followed Ndunde Investments Limited.
The court adopted the reasoning in Ndunde Investments that affidavit evidence, like oral evidence, may be interrogated to test credibility, and a party need not indicate up-front the questions it intends to pose. Setting out paragraphs is better practice because it prevents coaching of the deponent, but failure to do so does not invalidate the cross-examination.
Effect of cross-examination on the supporting affidavit
The cross-examination did not discredit the affidavit; the application for leave to amend should proceed to hearing.
The deponent explained discrepancies in his description (manager vs retired general manager) as typographical errors and explained the sub-division of the suit property and surrender of the original title. The court found no deliberate misrepresentation and held that the 1st defendant's apprehensions about the amendment are matters for the hearing of the amendment application.
Legal principles established
#- Failure of a notice to cross-examine a deponent to specify the paragraphs intended for cross-examination is not fatal, though setting them out is better practice.
- Cross-examination of a deponent on an affidavit is discretionary and should be ordered only where circumstances merit it, as it increases costs and prolongs suits.
Court orders
#- 1.The application dated May 24, 2022 shall proceed to hearing
- 2.The costs arising from the notice to cross-examine shall abide the outcome of this suit
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act (interlocutory application in a suit; Order 19 Rule 2 Civil Procedure Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vale Royal Trust & another v Rwika Aggregates Co. Ltd & 6 others", Case Analysis (2022). Environment & Land Case 49 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15285/eng@2022-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.