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ELCAllowedNot stated in judgment (plaint dated 23rd March 2022, Chuka)· [2024] KEELC 3744 (KLR)

Gulf Energy Holdings Limited v Mugwetwa (Environment & Land Case 002 of 2022) [2024] KEELC 3744 (KLR)

Environment and Land Court
25 April 2024
CYC.K Yano
1,518 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is an interlocutory ruling by the Environment and Land Court at Chuka arising from a suit over premises known as title number Chuka Township/3. The plaintiff sued seeking a permanent injunction and a declaration of rights as registered lessee under a lease dated 18th June 2009 as varied by a Deed of Assignment and Variation dated 13th January 2020, together with a temporary injunction. The defendant filed a defence and counterclaim seeking a declaration that the lease and Deed were terminated, and an application to strike out the plaint for lack of a reasonable cause of action, supported by an affidavit dated 16th November 2023. In opposition, the plaintiff filed grounds of opposition and orally applied to cross-examine the deponent of that affidavit on paragraphs 5 to 13, contending the affidavit deliberately concealed material facts, including matters that culminated in a settlement between the parties. The defendant opposed, arguing no basis had been laid. The court, C.K Yano J, framed one issue: whether the plaintiff should be allowed to cross-examine the deponent. Relying on Order 19 of the Civil Procedure Rules and decided authorities, the court held that the power to order cross-examination is discretionary, must be exercised judicially, and requires a laid basis such as allegations of fraud, mala fides or bad motive. Finding the concealment allegations sufficient and no prejudice to the defendant, the court allowed the cross-examination application, with costs in the cause.

Key legal issues

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01

Whether cross-examination of a deponent should be ordered

Holding

The application was allowed because the plaintiff established a basis - alleged concealment of material facts - and no prejudice to the defendant was shown

Reasoning

Order 19 rule 2 confers a discretion on the court to order attendance of a deponent for cross-examination. The discretion must be exercised judicially and a party must lay a basis. Cross-examination is appropriate where allegations of fraud, mala fides, bad motive or conflicting evidence arise. The plaintiff alleged the affidavit deliberately concealed material facts concerning a settlement, satisfying the threshold, and the court saw no prejudice to the defendant.

Legal principles established

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  • The power to order cross-examination of a deponent is discretionary and must be exercised judicially on a laid basis, such as allegations of fraud, mala fides, concealment or conflicting evidence

Court orders

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  1. 1.The application to cross-examine the deponent of the defendant's affidavit in support of the application dated 16th November 2023 is allowed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 19 rule 1 and rule 2
  • India Code of Civil ProcedureOrder XIX Rule 2

Cases cited (5)

  • Republic –vs- Kenya Revenue Authority exparte, Althaus Management & Consultancy Ltd
    (2015) eKLR
  • Ahmednasir Abdikadir & Co. Advocates –vs- National Bank of Kenya Limited (2)
    [2006] 2 EA 6
  • Lawson and Anor –vs- Odhams Press Ltd. And Anor.
    (1948) 2 All ER 717
  • GGR –vs- H-P S
    [2012] eKLR
  • Baby –vs- Sekar
    Petition M.P No. 1 of 2014 (2 December 2014)
Jurisdiction invoked
Order 19 of the Civil Procedure Rules (discretion to order cross-examination of a deponent)

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, "Gulf Energy Holdings Limited v Mugwetwa (Environment & Land Case 002 of 2022) [2024] KEELC 3744 (KLR)", Case Analysis (2024). Not stated in judgment (plaint dated 23rd March 2022, Chuka). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3744/eng@2024-04-25

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