Ndirangu v Jivunie Enterprises Ltd (Commercial Case E754 of 2025) [2026] SCC 228 (KLR)

3. It is the Applicant's case that the truthfulness and reliability of the averments in question can only properly be tested through cross-examination of the deponent. They therefore urge the Court to exercise its discretion under Order 19 Rule 2 of the Civil Procedure Rules and direct the attendance of the deponent for cross-examination. The Applicant further contend that unless the orders sought are granted, they stand to sufier prejudice as the Court may be called upon to determine contested factual issues without the benefit of testing the evidence of the deponent. They maintain that the application has not been brought for purposes of delay, but to facilitate the fair, just and expeditious determination of the pending application. 4. The application is opposed by the Claimant/Respondent through Grounds of Opposition dated 10th August, 2026. The Claimant contends that cross-examination of a deponent under Order 19 Rule 2 is not an automatic right but a matter falling within the discretion of the Court. It is argued that the applicants have failed to identify specific disputed facts or contradictions which are material to the determination of the pending application. The Claimant further contends that there is no allegation of fraud, bad faith or irreconcilable contradiction in the afidavit to warrant the exceptional remedy of cross-examination. 5. It is also contended that the 2nd Respondent, who is the auctioneer, has not traversed the averments made by the Claimant through an afidavit and that, consequently, the Claimant's application remains uncontested and ought to be determined on the basis of the evidence on record. The Claimant further argues that the applicant remains in contempt and ought not to be afiorded a hearing unless and until they purge the alleged contempt. 6. The application was canvassed by way of written submissions. I have considered the Chamber Summons, the afidavit in support, the Grounds of Opposition, the submissions by the respective parties and the entire record. The issue that falls for determination is: whether the Applicants have laid a suficient basis for the Court to order the cross-examination of Geofirey Ndirangu on his Supporting Afidavit sworn on 8th July, 2026. 7. The starting point is Order 19 Rule 2 of the Civil Procedure Rules, 2010, which provides: “Upon any application, evidence may be given by afidavit, but the court may, at the instance of either party, order the attendance for cross-examination of the deponent.” Sub-rule (2) further provides that such attendance shall be in Court unless the deponent is exempted from personal appearance or the Court otherwise directs. It is settled that the power conferred upon the Court by Order 19 Rule 2 is discretionary. Cross-examination of a deponent is therefore not an automatic right available to a party merely because the party disputes the contents of an afidavit. The party seeking such an order must place before the Court suficient material demonstrating why cross-examination is necessary in the interests of justice. 8. In G G-R v H-P S [2012] eKLR, cited in the case of Ndunde Investments Limited v Eugene Muthoni Dadet [2020] Court held “The law has allowed evidence to be proved by way of afidavits under Order 19. But under Rule 2 of the said Order, the court may order a deponent of an afidavit to attend court to be cross examined. It would appear that where allegations of matters touching on fraud, malafides, authenticity of the facts deponed (sic), bad motive among others are raised, cross examination of the deponent of an afidavit may be ordered. This also extends to where there is a confiict of afidavits on record or 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 afidavit. The court must feel that adequate material has been placed before it that shows that in the interest of justice and to arrive at the truth, it is just and fair to order cross examination.”. The discretion, however, must be exercised judiciously and only where https://new.kenyalaw.org/akn/ke/judgment/scc/2026/228/eng@2026-08-21 2

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suficient material has been placed before the Court to demonstrate that cross-examination is necessary to arrive at the truth and achieve justice. 9. It is also important that the party seeking cross-examination identifies the particular portions of the afidavit that require testing. In Wilfred Ngunjiri Nderitu t/a Nderitu & Partners Advocates v National Housing Corporation [2023] eKLR, the Court observed that a party desiring to cross-examine a deponent ought to set out the particular paragraphs upon which the cross-examination is sought, and that the discretion should only be exercised where the cross-examination would enhance the course of justice. Also see the case of R v Kenya Revenue Authority ex-parte Althaus Management and Consultancy Ltd [2015] eKLR. 10. In the present case, the Applicants have not merely expressed a general desire to cross-examine the Claimant's deponent. They have identified 5 grounds as captured inits paragraph 5 of the Supporting Afidavit as containing factual averments which they materially dispute. They have further explained why, in their view, those averments cannot adequately be tested through afidavit evidence alone. I have perused paragraph 5 of the afidavit. It is apparent that the averments complained of are factual in nature. The Applicants' objection is not merely to the legal conclusions drawn by the deponent but concerns the factual basis upon which the Claimant's application is founded. It is trite that where the determination of an interlocutory application turns upon contested questions of fact, the Court must be cautious not to determine those disputed facts merely on the basis of untested assertions where the circumstances of the case demonstrate that further testing of the evidence is necessary. The purpose of cross-examination in such circumstances is not to convert an interlocutory application into a full trial, but to assist the Court in ascertaining the truth on a material factual issue. I am therefore not persuaded by the Claimant's submission that the Applicants were required to establish fraud or bad faith before cross-examination could be ordered. Fraud, mala fides and contradictions are recognised circumstances in which cross-examination may become necessary, but they are not exhaustive conditions precedent to the exercise of the Court's discretion under Order 19 Rule 2. The overriding consideration remains whether, in the circumstances of the particular case, cross-examination is necessary to meet the ends of justice. 11. I have also considered the argument that the 2nd Respondent has not filed an afidavit traversing the Claimant's averments. The absence of a replying afidavit by one party does not, in my view, determine the present application. The Court is concerned at this stage with whether the Applicants have demonstrated suficient reason for testing the evidence of the particular deponent whose afidavit forms the basis of the pending application. The evidential position of the 2nd Respondent may be considered separately when the substantive Notice of Motion is determined. 12. As regards the allegation that the applicants are in contempt and should therefore be denied a hearing, I take the view that the issue of contempt is distinct from the question presently before the Court. If contempt is alleged, the same must be properly placed before the Court and determined in accordance with the filed application dated 8th July, 2026. It cannot, without more, operate as an automatic bar to a party being heard on an application properly before the Court, particularly where the Court is called upon to determine whether factual evidence placed before it ought to be subjected to crossexamination. 13. The Court must, however, guard against the use of cross-examination as a means of delaying proceedings. The overriding objective under Sections 1A and 1B of the Civil Procedure Act requires the Court to facilitate the just, expeditious, proportionate and afiordable resolution of disputes. Crossexamination should consequently be confined strictly to the material factual matters identified in the impugned afidavit and should not be permitted to become a substitute for the hearing of the substantive application. I note that this is a concluded matter. https://new.kenyalaw.org/akn/ke/judgment/scc/2026/228/eng@2026-08-21 3

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14. In the circumstances of this case, I am satisfied that the Applicants have laid a suficient basis for the exercise of the Court's discretion under Order 19 Rule 2. The disputed averments are suficiently identified and appear to be material to the determination of the pending Notice of Motion. I am therefore persuaded that allowing the deponent to be cross-examined will assist the Court in arriving at a just determination of the issues raised in that application. Consequently, the Chamber Summons dated 14th July, 2026 is merited and is hereby allowed in the following terms: a. Leave is hereby granted to the Respondent/Applicants to cross-examine Geofirey Ndirangu on the contents of his Supporting Afidavit sworn on 8th July, 2026. b. The cross-examination shall be confined to the specific factual matters identified by the Applicants as being materially disputed and shall not be used to unnecessarily expand the scope of the pending Notice of Motion. c. The hearing of the Notice of Motion dated 8th July, 2026 is hereby stayed pending the crossexamination of the said deponent and further directions of the Court. d. Mention for cross examination on 17th September, 2026. e. The costs of this application shall be in the cause. Leave to appeal is hereby granted. RULING IS DATED, SIGNED AND DELIVERED ELECTRONICALLY AT ELDORET THIS 21ST DAY OF AUGUST, 2026. M.E ALIGULA-RM In the presence of C/A: Mr. Lepatoiye https://new.kenyalaw.org/akn/ke/judgment/scc/2026/228/eng@2026-08-21 4

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