Ndirangu v Jivunie Enterprises Ltd (Commercial Case E754 of 2025) [2026] SCC 228 (KLR)
The bottom line
#A Kenyan court confirmed you can cross-examine someone on their sworn affidavit if you show the disputed facts actually matter to your case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicants have laid a sufficient basis for the Court to order the cross-examination of Geofirey Ndirangu on his Supporting Affidavit sworn on 8th July, 2026
Key legal issues
#Whether sufficient basis existed to order cross-examination of a deponent under Order 19 Rule 2
Yes - the applicants identified specific disputed factual averments material to the pending application, which justified the exercise of the court's discretion
The court held that cross-examination is discretionary, not automatic. The applicants identified five grounds in paragraph 5 of the supporting affidavit as materially disputed factual averments and explained why affidavit evidence alone was inadequate. Where an interlocutory application turns on contested facts, the court must not determine them on untested assertions. Fraud or bad faith need not be shown; the overriding consideration is the ends of justice.
Whether the absence of a replying affidavit by the 2nd Respondent (auctioneer) defeated the application
No - the absence of a replying affidavit by one party does not determine the present application
The court reasoned that the present question was only whether the applicants had shown sufficient reason to test the deponent's evidence; the 2nd Respondent's evidential position could be considered separately when the substantive Notice of Motion was determined.
Whether alleged contempt by the applicants barred them from being heard
No - alleged contempt is distinct and cannot, without more, operate as an automatic bar to being heard on an application properly before the Court
The court held that if contempt is alleged it must be properly placed before the court and determined in accordance with the filed application dated 8th July, 2026; it cannot operate as an automatic bar, particularly where the court is deciding whether evidence should be cross-examined.
Legal principles established
#- Cross-examination of a deponent under Order 19 Rule 2 is discretionary and not an automatic right; the applicant must place sufficient material before the court showing it is necessary in the interests of justice
- Fraud, mala fides and contradictions are recognised grounds for ordering cross-examination but are not exhaustive conditions precedent to the exercise of the court's discretion
- The overriding objective requires cross-examination to be confined strictly to material factual matters and not to become a substitute for the hearing of the substantive application
Court orders
#- 1.Leave granted to the Respondent/Applicants to cross-examine Geofirey Ndirangu on the contents of his Supporting Affidavit sworn on 8th July, 2026
- 2.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
- 3.The hearing of the Notice of Motion dated 8th July, 2026 is stayed pending the cross-examination of the said deponent and further directions of the Court
- 4.Mention for cross-examination on 17th September, 2026
- 5.The costs of this application shall be in the cause
- 6.Leave to appeal is granted
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 19 Rules 2 and 9 of the Civil Procedure Rules, 2010
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
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.
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.
The overriding consideration remains whether, in the circumstances of the particular case, cross-examination is necessary to meet the ends of justice.
The party seeking such an order must place before the Court sufficient material demonstrating why cross-examination is necessary in the interests of justice.
The costs of this application shall be in the cause.
Issues in the judgment
#Party descriptions are internally inconsistent - the moving party is described both as 'Plaintifi/Applicant' and 'Respondent/Applicants', while the opposing party is described as 'Claimant/Respondent'
The court grants 'leave to appeal' in an interlocutory inter partes matter without identifying the statutory basis for such leave
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndirangu v Jivunie Enterprises Ltd (Commercial Case E754 of 2025) [2026] SCC 228 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2026/228/eng@2026-08-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.