Warui & 12 others v Nduhiu & 3 others (Environment & Land Case E011 of 2021) [2023] KEELC 902 (KLR)
The bottom line
#A Kenyan court gave defendants a second chance to file submissions but refused their bid to cross-examine witnesses, saying fraud claims must wait for trial.
What this practically means
#Executive summary
#Key legal issues
#Re-opening the hearing of the plaintiffs' application dated April 6, 2021
Granted in effect: defendants allowed 14 days to file submissions out of time; setting aside the May 24, 2022 proceedings unnecessary.
The defendants' advocates diarized the mention date erroneously for May 25, 2022, and no contrary evidence was produced. Although the non-appearance did not explain failure to comply with submission timelines, the court held that disputes should as far as practicable be determined on merit, and the ruling was not yet prepared.
Leave to cross-examine deponents of the supplementary affidavits
Refused; no proper foundation or special circumstances shown.
The suit was founded on fraud and breach of trust alleged against the 1st and 2nd defendants regarding the suit property; such allegations can only be conclusively established at trial. Doubts about the authenticity of death certificates could not be resolved by cross-examination alone; an affidavit from the Registrar of Births and Deaths would be more useful. The apparent signature anomaly was a typographical mix-up.
Costs of the application
Awarded to the plaintiffs.
Costs follow the event under the proviso to section 27 of the Civil Procedure Act. Although leave to file submissions out of time was granted, the default was the defendants' own; no good reason existed to deprive the plaintiffs of costs.
Legal principles established
#- Cross-examination of a deponent on an affidavit is a discretionary power not granted as of right; a party must lay a proper legal foundation and special circumstances must exist before cross-examination is ordered at the interlocutory stage.
- Allegations of fraud and forgery repeated in an affidavit do not warrant interlocutory cross-examination where they can only be conclusively established at trial.
- Costs follow the event under section 27 of the Civil Procedure Act unless the court, for good reason, directs otherwise.
Court orders
#- 1.The defendants are granted 14 days to file their written submissions to the plaintiffs' notice of motion dated April 6, 2021.
- 2.Save as aforesaid, the rest of the prayers in the defendants' notice of motion dated May 27, 2022 are denied.
- 3.The defendants shall bear the costs of the application.
- Jurisdiction invoked
- Original jurisdiction under the Civil Procedure Act (cap 21) and Order 51 rule 1 of the Civil Procedure Rules (interlocutory application in a pending derivative suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Warui & 12 others v Nduhiu & 3 others (Environment & Land Case E011 of 2021) [2023] KEELC 902 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/902/eng@2023-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.