Abdulkarim Rashid t/a Melodica v Salimirwa Trading Co. Ltd & another [2022] KEBPRT 767 (KLR)

Abdulkarim Rashid t/a Melodica v Salimirwa Trading Co. Ltd & another (Tribunal Case 464 of 2016) [2022] KEBPRT 767 (KLR) (23 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 767 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case 464 of 2016

CN Mugambi, Chair

September 23, 2022

Between

Abdulkarim Rashid t/a Melodica

Tenant

and

Salimirwa Trading Co. Ltd

1st Landlord

Elimu Investments Ltd

2nd Landlord

Ruling

Introduction 1. The application dated June 27, 2022 proceeded for hearing on July 12, 2022 when the applicant gave evidence in support of his application.

2. After the applicant/tenant had testified, the counsel for the respondent informed the court that he was entirely relying on the affidavit of Mr Macharia Maina.

3. Counsel for the applicant objected to the respondent’s reliance on the affidavit of Mr Maina and sought to have him summoned for cross-examination. It is this contention that I have to decide in this ruling.

4. The notice of motion dated June 27, 2022 seeks the following orders;a.…b.That this application be heardviva voce in priority of the main suit.c.That the main suit be adjourned pending the hearing and determination of the contempt proceedings before the High Court being Misc application Nos 646 of 2019 and 733 of 2019. d.That the tenant/applicant be provided with the inspection report arising out of the inspection conducted by this honourable tribunal or on the alternative, the tribunal directs and conducts a fresh inspection of the subject matter premises herein.e.That the tenant/respondent be allowed time and access to the tribunal’s documents touching on the proceedings heretofore this suit touching on the landlord/respondent.f.That summons do issue to the persons who prepared or under whose authority and expertise documents relied in this matter by the parties herein were prepared, inclusive of the director of criminal investigations the Nairobi city county and the experts named in the documents.g.Costs

5. I have carefully gone through the prayers sought by the applicant in his affidavit and i am not convinced that the calling in of the respondent’s deponent, Mr Macharia for cross-examination would affect the court’s discretion in granting or denying the orders sought.

6. Under order 19 of the Civil Procedure Rules;(1)Any court may at any time for sufficient reason order that any particular fact or facts may be proved by the affidavit or that the affidavit of any witness may be read at the hearing on such conditions as the court thinks reasonable. Provided that, when it appears to the court that either party bona fide desires the production of a witness for cross-examination and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.(2)(1) Upon any application, evidence may be given by affidavit but the court may at the instance of either party order the attendance for cross-examination of the deponent.

7. It is clear from the above provisions that the court has absolute discretion to order the attendance of an affidavit for cross-examination.

8. InRepublic v Kenya Revenue Authorityex-parteAlthanus management and Consultancy Ltd [2015] eKLR the court stated;“Cross-examination on the affidavit is a discretionary power conferred upon the court by the provisions of order 19 rule 2 of the Civil Procedure Rules. It is not given as a matter of right and therefore any party who wishes to cross-examine a deponent must satisfy the court that there is a good reason for the purpose of examination. In other words, a party has to lay down a proper legal foundation to justify his application for leave to cross-examine the deponent. As the requisite rules recognize the use of affidavits in evidence especially in the course of interlocutory applications, the courts ought not to readily permit cross-examination of the deponent’s affidavits, otherwise, if the courts become too willing to allow for cross-examination, the already limited time available for applications would be further curtailed to the detriment of the wider interests of justice. Therefore, in order to ensure that no more time than is really necessary is further taken up by cross-examination, it is only in instances where the court is satisfied that the cross-examination is essential in enhancing the cause of justice that the court would allow deponents to be cross-examined.”

9. In the instant application for cross-examination of Mr Macharia Maina on his affidavit, I am not convinced that adequate material has been placed before me to require me to exercise my discretion in favour of calling the defendant.

10. The best course that commends itself to me is to decline that invitation and allow the respondent to rely on its replying affidavit as requested by the counsel for the respondents.

11. I also note that this matter had been fixed for hearing of the reference and any further delays do not serve the interests of justice.

12. The tenant/applicant is therefore at liberty to proceed to respond to the replying affidavit if he needs to before further orders in the application dated June 27, 2022 may issue.

HON. CYPRIAN MUGAMBI NGUTHARICHAIRMANBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this 23rd day of September, 2022 in the presence of Mr Murimi for the Landlord and Mr Macharia for the Tenant.HON. CYPRIAN MUGAMBI NGUTHARICHAIRMANBUSINESS PREMISES RENT TRIBUNAL