Vale Royal Trust & another v Rwika Aggregates Co. Ltd & 6 others

amend the plaint. Counsel further explained that they had hoped to produce the original title of the suit property in support of their case but he had since learnt that the property was sub-divided and the original title surrendered to the Registrar of Lands. 4. Counsel also explained that they were awaiting the issuance of a new title document which would bear a dierent number thus necessitating an amendment to the plaint so as to to capture this new number. 5. Counsel for the 2nd 3rd, 4th 6th and 7th defendant did not oppose the adjournment. Counsel for the 1st Defendant was absent. An adjournment was granted and the matter scheduled for mention on May 31, 2022 to conrm ling of the application for leave to amend the plaint. 6. Before the mention of May 31, 2022, the Plaintis indeed led the application. It is dated May 25, 2022. It is supported by an adavit sworn by one Nelson Rotich. 7. On May 31, 2022 the matter came up for mention to conrm ling of the application. Counsel for the 1st Defendant conrmed that he had been served with the application for leave to amend the plaint and sought 21 days to le his response. Counsel for the Plaintis was agreeable to the 1st Defendant being granted more time. The application was rescheduled to July 5, 2022 for hearing. 8. On July 5, 2022 counsel for the 1st Defendant sought orders for cross examination of Nelson Rotich on the contents of the adavit sworn by him. 9. The court directed that the 1st Defendant les and serves notice to cross examine and further that all parties le their responses to the said application by July 19, 2022. 10. On July 19, 2022 counsel for the 2nd 3rd, 4th 6th and 7th Defendant intimated that they would not be opposing the application for leave to amend the plaint. Counsel for the 1st Defendant, on the other hand, intimated that he had led and served the notice to cross examine the deponent of the adavit in support of the application for leave to amend the plaint adding that he had however not received the Plaintis’ supplementary adavit. 11. The application was conrmed for hearing on November 14, 2022 and an order made that Mr Rotich appears on the same date for cross- examination on the contents of his adavit. 12. On 1November 4, 2022 Mr Nelson Rotich appeared and was cross-examined on his deposition as contained in paragraph 2, 3 and 5 of the adavit in support of the application and paragraph 5 of the supplementary adavit. 13. Briey, Mr Nelson Rotich reiterated that he had retired from the employment of the 1st and 2nd Plainti. He conrmed that paragraph 1 of the adavit in support of the application describes him as a manger of the 1st and 2nd Plainti and explained that this was a typographical error. He added that the correct position was as contained in his testimony as presented in court on February 14, 2022 i.e that he was no longer an employee of the Plaintis. 14. He also stated that the correct position as pertains to his relationship with the 1st and 2nd Plainti is contained in paragraph 3 of the supplementary adavit; that he is a retired general manager. 15. The court also noted that paragraph 3 of the supplementary adavit describes him as a general manager of the Plaintis and to this, his response was that it, too, is a typographical error. 16. On paragraph 5 of the supplementary adavit, Mr Nelson Rotich conrmed that the suit property is now described as- LR No 9362/7. He explained that as at the time of his testimony, he did not have the original title adding that it was in the custody of the 1st Plainti. He stated that the 1st Plainti subsequently surrendered it to the Lands oce to facilitate the process of sub-division. He further https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15285/eng@2022-12-08 2

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explained that about 500 acres had been excised from it. He stated that he did not know the land parcel number for the 500 acres. 17. Mr Nelson Rotich conrmed that the adavit sworn on May 24, 2022 has 17 paragraphs while the supplementary adavit sworn on July 18, 2022 had 9 paragraphs. Mr Rotich further conrmed that paragraph 5 of the supplementary adavit speaks to the sub-division of the suit parcel but does not specically mention 500 acres. 18. Counsel for the 1st Defendant asked that Mr Rotich be excused adding that he wished to peruse the original title being alluded to by Mr Rotich at paragraph 5 of the supplementary adavit. 19. After cross-examination, Counsel for the Plaintis submitted that the notice to cross-examine did not set out the paragraphs of the supporting adavit that the 1st Defendant had wished to cross examine Mr Rotich on. 20. He further submitted that the cross-examination was delving into matters for determination at a trial and further that the questions put to Mr Rotich were touching on the merits of the application. Analysis And Determination. 21. Order 19 Rule 2 of the Civil Procedure Rules provides as follows: ' (1) Upon any application, evidence may be given by adavit, but the court may, at the instance of either party, order attendance for cross examination of the deponent.' 22. Order 19 permits the use of adavits as evidence and cross-examination of the deponent's adavits is discouraged unless the circumstances merit it. This is for the reason that it may result in increased costs during interlocutory proceedings and unduly prolong a suit. 23. It is clear that allowing cross-examination on an adavit is a matter of discretion. This court exercised discretion in favour of the 1st Defendant and allowed it wide latitude in cross-examination of Mr Rotich including cross-examination on contents of the supplementary adavit which did not form part of the notice to appear for cross-examination. 24. While it is true, as stated by counsel for the Plaintis, that the notice to cross-examine did not set out the paragraphs of the adavit in support of the application that the 1st Defendant intended to crossexamine on, the Learned Judge in Ndunde Investments Limited v Eugene Muthoni Dadet [2020] eKLR held as follows; 'My nding is that adavit evidence, like oral evidence, is not full proof or beyond challenge and may be interrogated through cross examination in order to test its credibility. I further nd that just like in any normal cross examination after presentation of oral evidence, a party seeking to cross examine a deponent must not necessarily indicate up-front of beforehand, the nature of questions he intends to pose to the deponent during cross examination.' 25. Taking cue form the decision in Ndunde Investments Limited (Supra), I nd that failure to set out the paragraphs intended for cross-examination is not fatal and is a better practice because it ensures that a deponent is not coached and therefore, truthfully responds to questions put to him. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15285/eng@2022-12-08 3

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26. In the decision of GGR v HPS [2012] eKLR, the Learned Judge outlined instances where a deponent may be subjected to cross-examination: ' The law has allowed evidence to be proved by way of adavits under Order 19. But under Rule 2 of the said Order, the Court may order a deponent of an Adavit to attend court to be cross-examined. It would appear that where allegations of matters touching on fraud, mala des, authenticity of the fats deponed (sic), bad motive among others are raised, crossexamination of a deponent of an Adavit may be ordered. This also extends to where there is a conict of Adavits on record or where the evidence deponed (sic) to is conicting in itself. Further, the order for cross examination is a discretionary order but as is in all discretions, the same must be exercised judiciously and not whimsically. There should be special circumstances before ordering a cross examination of a deponent on an Adavit. The court must feel that adequate material has been placed before it that show that in the interest of justice and to arrive at the truth, it is just and fair to order cross examination.' 27. After listening to the questions put to Mr Nelson Rotich by counsel for the 1st Defendant and on interrogating the responses given by Mr Nelson Rotich, I am satised that Mr Nelson Rotich did not deliberately misrepresent his relationship with the 1st and 2nd Plainti. He reiterates that he is a retired manager. 28. The second set of questions put to Mr Nelson Rotich relate to the proposed amendment which amendment is intended to rectify the description of the suit parcel. He explained that the suit parcel, subsequent to his testimony, had been sub-divided and the Plaintis wish to amend the plaint to reect the new number. 29. Counsel for the 1st Defendant might not nd this explanation satisfactory and might not even believe it but it is an explanation nevertheless. I read apprehension on the part of the 1st Defendant on the eect of the proposed amendment. These apprehensions, real or perceived, are matters to be raised during the hearing of the application for leave to amend, it is then that the court will have opportunity to make a determination on them. Disposition. 30. I nd that there is no sucient reason to disregard the adavit in support of the application for leave to amend the plaint or the supplementary adavit. 31. Consequently, I order as follows; 32. a. The application dated May 24, 2022 shall proceed to hearing. b. The costs arising from the notice to cross-examine shall abide the outcome of this suit. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 8thDAY OF DECEMBER, 2022. L. A. OMOLLO JUDGE In the presence of: Mr. Aim for the Plaintis. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15285/eng@2022-12-08 4

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Mr. Mbeche for the 1st Defendant. No appearance for the 2nd – 7th Defendants. Court Assistant; Ms. Monica Wanjohi. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15285/eng@2022-12-08 5

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