Kimemia v Juma & 5 others (Environment & Land Case 351 of 2008) [2024] KEELC 1436 (KLR)
The bottom line
#A Kenyan court ruled that cross-examining an affidavit's maker is a discretion, not a right, and dismissed the request because no disputed facts were shown.
What this practically means
#Executive summary
#Key legal issues
#Whether an advocate who swears an affidavit on behalf of a client in contempt proceedings should be subjected to cross-examination
No, where the affidavit does not depone to disputed or contested facts; counsel's acts such as serving the decree or attending Ardhi House are personal actions, not contested facts, and points of law can be raised in defence of the contempt application
The court applied Order 19 rule 2 and the Salat test requiring demonstration of disputed matters by reference to the affidavit's contents. It found the verifying affidavit dealt with the advocate's receipt of instructions, service of the decree and attendance at Ardhi House - matters personally done by counsel and not contested issues. The Respondent's objections concerned interpretation of the decree, which are matters of law addressable in the contempt defence under sections 33 and 34 of the Land Registration Act.
Whether a person facing a pending, undetermined contempt application may be denied audience on interlocutory matters
No; the Mawani principle only applies where contempt has been established, not where proceedings are pending
The Plaintiff relied on Mawani v Mawani and Shah v National Industrial Credit Bank to argue a contemnor should not be heard. The court held that since the contempt application had not been determined, the 3rd Respondent could not be said to be in contempt, and was entitled to be heard on the Notice to Cross-Examine.
Legal principles established
#- Cross-examination of a deponent is a discretionary power under Order 19 rule 2 of the Civil Procedure Rules, not a right, and the applicant must lay a proper legal foundation showing disputed facts
- A party cannot be treated as a contemnor and denied audience while the contempt proceedings against them are yet to be determined
Court orders
#- 1.The Notice to Cross-Examine dated 24th November 2023 is dismissed
- Jurisdiction invoked
- Order 19 rule 2 of the Civil Procedure Rules, 2010 (court's discretion to order attendance for cross-examination of a deponent)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimemia v Juma & 5 others (Environment & Land Case 351 of 2008) [2024] KEELC 1436 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1436/eng@2024-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.