Reuben Kitonyi Ngila v Governor of Central Bank of Kenya [2017] KEHC 2771 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  501 OF 2016

REUBEN KITONYI NGILA………………………………………APPLICANT

VS

THE GOVERNOR OF CENTRAL BANK OF KENYA…..…...RESPONDENT

RULING

1. On  14th September  2017 the exparte  applicant  Mr Reuben  Ngila  Kitonyi  filed a  notice to  cross examine   Mr Kennedy Kaunda  Abuga  the deponent of the  replying  affidavit sworn in response  to the  exparte  applicant’s  substantive  motion. This notice was further to two earlier notices to cross examine the said deponent. They are dated and filed on 5th may, 2017 and 27th September, 2017 respectively.

2. According to the notice to cross examine dated  14th September  2017 and which  was directed at Mr Ben Makasi Simiyu advocate for the respondent, the exparte  applicant  wished that the advocate  for the respondent should not be present  when the said  deponent  is being  cross examined  based on the authority of  Pote  v  Jarvel  [1991] SC  WV .

3. According to Mr Ngila, counsels  are not  expected to misadvise  their clients and that there were two issues which were  conflicting  which can  be clarified  by examination and  cross examination ie that  HC  Miscellaneous  Application No.  JR  390/2015  in which the respondent stated that the reason  for  dismissal of the applicant and the issues  in the criminal, case No. 2881/1996 were different, and that now in the instant case they were saying the  contrary. Further, that it is criminal to  mislead  the court by making  wrong statements contrary to Section  113  of the Penal  Code Cap  63  Laws of Kenya.

4. On  4th October  2017  the  exparte applicant  was allowed to make an oral application for leave  to cross examine  Mr Kennedy Kaunda Abuga  on his replying  affidavit  filed in court  on 8th February   2017.  The applicant stated that it  was  necessary  to call Mr  Kaunda for  cross examination because there  are issues  to be  clarified  like whether what happened in criminal case  No.2881/96   was an  employment  matter and  why it  was not possible for the respondents to produce witnesses to give evidence  and  why investigations  report  (sic) and  show  cause  letter have  not been  produced.  The applicant relied on Order 53 Rule 3(4) of the Civil Procedure Rules which he asserted, makes it a mandatory requirement   for cross examination of a deponent of an affidavit sworn in judicial review proceedings.

5. The request to  cross examine  the   deponent  Mr Kennedy Kaunda  Abuga   was opposed by  the respondent’s   counsel Mr  Simiyu who  submitted that the application lacked merit, an afterthought  and calculated  to delay the matter  herein.

6. It  was contended that the  subject  replying affidavit   was  filed on  8th February  2017  after which the court  directed parties to  proceed by way of   written  submissions  which  were  filed and that the  applicant  filed close to  ten submissions  on record under  different  headings  hence it is  only  fair and just  that the matter herein  proceeds  to hearing and  judgment  be written  based on the submissions already filed after highlighting as earlier directed  by the court.

7. It  was  submitted that the  application  to cross examine   the  deponent  should have been filed  or made  immediately  after the affidavit  in  question was filed  and  not so late in the day as is  the case here.

8. Counsel urged that the Sections 1A and 1B of the Civil Procedure Act  obliges this court to expedite  cases justly and  effectively  and that  to allow this application by the respondent   at this  stage is  to violate the overriding  objectives  of  the law.

9. It was submitted by Mr Simiyu that the route taken by the exparte applicant is a dangerous one as it urges the court to descend into the arena of the merits of the case and not the process.  Reliance was placed on the case of Albert Kigera Karume & Others vs George Ngugi Waireri & Others HCC 125/2015.

10. It was also submitted that the application for cross examination of the deponent is spent.  That the applicant  seeks to be  furnished with disciplinary  proceedings  which took  place  about  20 years  ago and which  have been  availed  to court as part  of  the replying  affidavit  hence  there is no  need for  cross  examination.  Counsel urged the court to dismiss the application.

11. In a rejoinder, Mr Kitonyi  denied that he had brought the  issue of  cross examination late  since he  raised it  in his submissions filed  way  back in  April  2017.  That there are lots of untruths in Mr Abuga’s affidavit while his counsel is protecting the deponent.  He stated that he  was not  given an opportunity  to appear before the disciplinary committee hence the  proceedings  annexed to Mr Kaunda’s  replying  affidavit  are not  the ones that  the  exparte applicant  wanted hence  Mr Kaunda  should appear  in court to  clarify the issues in  his sworn affidavit.

DETERMINATION

12. I have considered the foregoing.  The right to challenge and adduce evidence is espoused in Article 50(2) (k) of the Constitution of Kenya, 2010. In addition, Section 163 (1) of the Evidence Act Cap 80 Laws of Kenya stipulates that:

“ The credit  of a witness  may be  impeached  in the following  ways by  the  adverse  party, or with  the  consent of the   court, by the party   who calls him-

a.

b.

c. By proof of former statements, whether written or oral, inconsistent with any party of his evidence which is liable to be contradicted.

13. However, Section  146(2)  of the Evidence Act  is also clear that  cross examination must  relate to  relevant  facts, and need not  be considered  to the facts to  which the  witness  testified  in his examination in chief.

14. Order 19 Rule 2 (1) and (2) of the Civil Procedure Rules stipulates that upon any application, evidence may be given by affidavit, but the court ay, at the instance of either party, order the attendance for cross-examination of the deponents. Such attendance shall be in court unless the deponent is exempted from personal appearance in court or the court otherwise directs.

15. Cross  examination of a witness  or a  party to proceedings  is a mechanism used to  bring out desirable  facts  to modify  or clarify  or to establish  the  cross examiner’s  case.  It is meant to extract the qualifying facts or circumstances left out by a witness in a testimony given in examination in chief.

16. Cross examination is also intended to impeach the credit worthiness of a witness.  It is in cross examination that a witness or deponent may be asked questions to expose omissions, contradictions, omissions, and improbabilities.

17. In the process, the veracity of witness averments is tested.  In other  instances  the  court may  allow  cross examination to get a glimpse  of what  to expect  during the substantive  hearing.  Thus, cross examination may also assist the court give the necessary directions   in the case.

18. The power  to permit cross  examination  of  a deponent  on his affidavit lies with the court and  is a discretionary power, having  regard  to a party’s  right to  challenge  evidence as stipulated  in Article 50( 2 ) (k) of the Constitution.

19. However, cross examination should not be used as a tool to delay the disposal of a matter which may otherwise be straight forward.

20. The respondent in this case the Governor of Central Bank of Kenya opposes the request by the applicant to cross examine the deponent of the affidavit opposing the applicant’s substantive motion terming it an afterthought and intended to delay the expeditious disposal of this matter.

21. This court  is given wide  latitude  under Order  19 Rule  2  of the Civil Procedure Rules to order the  attendance  of a deponent  for cross examination on the application of either party.  However, such application must be made in good faith   and not at the spur of the moment.

22. In this case, the applicant has set out  the  issues which he wishes  clarified  by way of cross  examination  of the deponent  of  the replying affidavit, Mr Kennedy Kaunda Abuga of Central Bank of Kenya, before highlighting of the  written  submissions.

23. The exparte  applicant is acting  prose  and  despite  this court  urging  him to seek  for legal  aid from the National  Legal Aid  Service, he  was  reluctant to  do so and has continued  acting in person   which it is  his right to do so, by choice.  This court is aware that cases are never conducted on the basis of cross examination alone but are conducted on the pleadings and the evidence tendered.  Cross examination is only  but a  tool for testing the truthfulness or credibility of the deponent hence  there is no case that can be  made out by a party through cross examination however  thorough  that cross examination  may be.

24. Cross examination is only intended to test the veracity of the witness testimony on his affidavit   taken on oath.  (see Joachim Ndaire Macharia vs Mary Wangare Ndaire & Another Nyeri HCCA 63/2016.

25. The value of the material  elicited  in cross examination, if any, can only be considered  by the court deciding  the  case at  which point the court may well disregard  the  same.  (see Nuh Nassir Abdi V Ali Wario & 2 Others [2013] e KLR.

26. In Oriental Five & General Assurance Ltd vs Govinder & Others CA 39/1968 [1969] EA 116, the Court of Appeal stated:

“ Cross examination may sometimes  let in evidence  which could not be admissible  in examination in chief, but  since the cross examination took place after objection had been taken  to the admission of the evidence and moreover, was only directed to the right of  the witness to refresh  his memory from a written record, not to  the substance  of the evidence.  In any case, the evidence was clearly inadmissible against the third respondent.  There is no authority for saying that the opportunity, not exercised, to cross examine can make admissible and the court has no hesitation in rejecting that proposition.”

27. The purpose of  allowing  cross examination  sometimes  places  parties  on equal  footing  particularly  where the party seeking to cross examine  has  had either  himself or his  witness  cross examined.

28. In this case, the court is aware  that matters  raised  in these  proceedings are  age-old and it is  possible that, as submitted by Mr  Simiyu  for the respondent, records  have been  disturbed  and  or memory  of Mr Ngila who is self-represented is not  clear.  Cross examination of the deponent on his affidavit may assist him to refresh his memory.

29. This court is in control of these proceedings and is alive of Section 1A and 1B of the Civil Procedure Act on the overriding objectives of the law as well as Article 159(2) (d) of the Constitution of ensuring justice is done to the parties  without delay.  However, expedition j should not be sacrificed at the altar of substantive justice.

30. This court is called upon to do justice to all parties irrespective of their status.  All the parties  hereto have filed their  respective  documents and submissions as  directed  by the court and albeit counsel for  the respondent is  apprehensive  that there may be delay or that the  application for  cross examination is brought  as an afterthought, or that  the applicant  has filed  more than  ten documents in the different  names, it ought  to be appreciated that the court is only  bound to  consider  documents  which  are filed or  placed  on record regularly or with  leave of  court or  as pleadings or responses  filed within the stipulated  timelines and not  every other  document sneaked into the court file  after the court  has given  appropriate directions.

31. In addition, the submissions filed by the applicant in April 2017 clearly shows that the applicant had from onset albeit unprocedurally, sought to cross examine  Mr Kennedy Abuga on the replying affidavit.  The applicant also filed notices to cross examine the same deponent in May and July this year, an indication that he had been waiting for the opportunity when the court would hear him out on this aspect.

32. Being a  lay person, the court can appreciate  the manner in which  that request  was initially made  and  that is why  the court  did not  wish to  have this matter prolonged  further, by directing  that the  application for cross examination  of the deponent   be made  orally.

33. The Albert Kigera (supra)  case relied on  by the respondent’s  counsel  was   decided  on the basis of an application by a party to cross examine his own   witness which  the court disallowed on the  grounds inter alia, that it had  not been  demonstrated  that the witness  sought to be cross examined had adduced evidence  or sworn  an affidavit  whose contents  were adverse   to the  interests of the applicant.

34. That  case can therefore  be  distinguished  from this case which  concerns  an application to cross examine an adverse  party’s witness.  This  court is  entitled  to endeavour to do substantial justice to all parties  without  allowing  unnecessary clogs  and fetters  to be  placed  along the path  of justice  and in its  quest  for truth, and just and  fair  determination of the substantive  notice of motion being prosecuted by a prose litigant, I would allow cross examination of the deponent  of the  replying  affidavit Mr Kennedy Kaunda Abuga to be conducted simultaneous with  the main  hearing of the substantive notice of  motion on a date to be fixed  on priority  basis.

35. As the right to challenge  evidence  or depositions  of an adverse  party  is guaranteed in the Constitution, and  as it has not  been shown that cross examination of the deponent  will occasion  any prejudice to the respondent or that the deponent is exempted from court appearance or cannot be found without undue delay, or that the  application is made in  bad faith, I exercise  the discretion  given to this  court by Order  19  Rule  2  of the Civil Procedure  Rules  and  grant to the  applicant  leave to  cross examine  Mr Kennedy Kaunda  Abuga   on his replying affidavit   filed in court on  8th February  2017.

36. The cross examination thereof shall take placed simultaneous with the hearing of the substantive notice of motion subject of these proceedings and counsel for the respondent is entitled to be present and  reexamine  the witness  on a priority  date  to be agreed upon  by both parties  hereto  on which  date Mr Kennedy  Kaunda  Abuga  of Central  Bank of Kenya  is hereby ordered  to appear in court without fail for cross  examination  by the exparte  applicant herein.

37. I do not find the authority cited by Mr Ngila relevant in this  jurisdiction  as the Constitution  is clear  on the right to  a  fair hearing  and  to adduce  and  challenge  evidence.in addition, there is nothing in Order 53 Rule 4 of the Civil Procedure rules that commands for cross examination of a deponent of an affidavit.

38. Each party to bear their own costs of this application. I so order.

Dated, signed and delivered in open court this 16th day of October 2017.

R. E. ABURILI

JUDGE