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ELRCDismissedPetition No E005 of 2020· [2022] KEELRC 842 (KLR)

Innocent Enoce Omboko v Speaker & Chairperson of Busia County Assembly Service Board & 6 others [2022] KEELRC 842 (KLR)

Employment and Labour Relations Court
10 February 2022
CBChristine N. Baari
1,193 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled you cannot force cross-examination of a witness early in a case unless special circumstances justify it.

What this practically means

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Executive summary

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This was a ruling by the Employment and Labour Relations Court at Kisumu (Baari J) on the Petitioner's application dated 25th November 2021, in which the Petitioner, Innocent Enoce Omboko, sought leave to cross-examine the 6th Respondent, Allan Wafula Mabuka, on specific paragraphs of affidavits sworn in support of the Respondents' applications dated 2nd and 17th November 2021. The Petitioner argued that the affidavits contained allegations of fraud, deception, defamation, scandal and vexation which the deponent should be made to substantiate, and relied on Article 50(1) of the Constitution, invoking his right to be heard, and on Order 19 Rule 2 of the Civil Procedure Rules. The Respondents opposed, contending that cross-examination at the interlocutory stage would amount to trying the suit on affidavits and wasting judicial time, noting that the deponent would be available for cross-examination at the hearing of the petition. The court held that cross-examination of a deponent is not a party's right but an exercise of judicial discretion to be exercised only where justified and supported by special circumstances, as articulated in GGR v HPS and adopted in Prof. Tom Ojienda & Associates Advocates v National Land Commission. Although acknowledging that the affidavits were 'littered with allegations of fraud, deception and general bad faith', the court agreed with the Respondents that the issues sought to be probed were largely the same issues arising in the main claim, and that allowing cross-examination at that stage would prejudice the entire suit. The court declined the order for cross-examination, noting the Petitioner would have an opportunity to cross-examine the deponent during the hearing of the main suit, and ordered costs of the application to be costs in the cause.

Key legal issues

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01

Whether sufficient grounds exist to order cross-examination of a deponent at the interlocutory stage

Holding

The application for cross-examination was declined because the issues raised overlapped with the main suit and the Petitioner would have an opportunity to cross-examine during the hearing of the main suit

Reasoning

Order 19 Rule 2 gives the court discretion to order attendance of a deponent for cross-examination. Although the affidavits contained allegations of fraud, allowing cross-examination at the interlocutory stage would prejudice the entire suit since the issues sought to be probed were largely the issues in the main claim. The Petitioner would have an opportunity to cross-examine the deponent during the hearing of the main suit.

p. 2

Legal principles established

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  • Cross-examination of a deponent is not a right but an exercise of judicial discretion to be exercised only where justified
  • Special circumstances are required before ordering cross-examination of a deponent on an affidavit

Court orders

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  1. 1.The application for cross-examination of Allan Wafula Mabuka (6th Respondent) is declined
  2. 2.Costs of the application shall be costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 50(1)
  • Employment and Labour Relations Court ActSection 12(3) & 20(4)
  • Employment and Labour Relations Court (Procedure) RulesRule 20
  • Civil Procedure RulesOrder 19 Rule 2
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (7)

  • Majanja Luseno & Co. Advocates v Sammy Boit Arap Kogo
    (2016) eKLR
  • Re Estate of the Late Harvinder Singh Rechal (Deceased)
    (2020) eKLR
  • Rv KRA Ex parte Athnus Management & Consultancy Limited
    (2015) eKLR
  • Nyoro Construction Co. Limited v Prashanth Projects Ltd & Another
    144 of 2015
  • Republic v Kenya Revenue Authority ex parte Althaus Management & Consultancy Ltd
    [2015] eKLR
  • GGR v HPS
    [2012] eKLR
  • Prof. Tom Ojienda & Associates Advocates v National Land Commission
    Misc. Application No. 29 'B' of 2016
Jurisdiction invoked
Article 50(1) of the Constitution; Section 12(3) & 20(4) of the Employment and Labour Relations Court Act; Rule 20 of the Employment and Labour Relations Court (Procedure) Rules; Order 19 Rule 2 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Innocent Enoce Omboko v Speaker & Chairperson of Busia County Assembly Service Board & 6 others [2022] KEELRC 842 (KLR)", Case Analysis (2022). Petition No E005 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/842/eng@2022-02-10

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