By Sam Alfan.
The High Court has rejected an application by Technoservice limited to cross-examining former country manager of Microsoft East Africa limited.
Justice Peter Mulwa dismissed application by TechnoService ltd seeking to cross-examine former Microsoft East Africa limited Country Manager Kendi Nderitu over an affidavit she swore regarding transactions between Nokia Corporation and Microsoft Mobile regarding the transfer of the Frame Repair Services Agreement.
“I am not satisfied that the Applicant has demonstrated sufficient grounds to justify the cross-examination sought. I find that the application lacks merit. It is hereby dismissed,” ruled the judge while dismissing the application.
Judge Mulwa said that the alleged discrepancies in the dates of commissioning of the affidavit and annexures, while irregular, they do not amount to perjury.
The judge said the court must remain guided by the overriding objective of facilitating the just, proportionate and expeditious disposal of proceedings.
TechnoService ltd sought to cross-examine Nderitu on the basis that an affidavit filed in court contained inconsistent, incoherent and conflicting depositions in several paragraphs coupled with allegations of perjury, fabrication, and forgery of documents.
In a supporting affidavit, the company director Bulent Gulbahar said case dated 21st October 2021 and the supporting affidavit sworn on 19th October 2021 contained several inconsistent, incoherent and false statements necessitating the cross-examination of Nderitu, the deponent.
It is contended that the depositions in several paragraphs are internally contradictory or based on matters outside her personal knowledge.
In particular, while Nderitu claimed authority to swear on behalf of the Microsoft East Africa ltd and supports a Chamber Summons referring the matter to arbitration, she simultaneously denies Microsoft East Africa’s involvement with the Technoservice ltd.
She is also alleged to have asserted that the agreements were transferred to the Microsoft Mobile, and alleges that the Microsoft East Africa ltd was improperly joined in the proceedings.
Technoservice ltd told the court these positions are inconsistent and mutually destructive.
The company argued Ms. Nderitu was neither an employee nor officer of Microsoft East Africa ltd, Microsoft Mobile, nor Nokia at the material time, thus casting doubt on the veracity of her statements on corporate arrangements, transfer of business, and arbitration proceedings.
The company further alleged that the averments in three paragraphs amounts to perjury in relation to the Stock and Asset Purchase Agreement, assumption of liabilities, and termination of arbitration.
Microsoft East Africa ltd opposed the application through the company Principal Corporate Counsel Otilia Phiri arguing that Ms. Kendi Nderitu swore the affidavit in her capacity as the former Country Manager of the company, although she has since left its employment.
It was contended that the application for cross-examination does not meet the legal threshold as it fails to demonstrate fraud, mala fides, or bad motive.
Lawyer Phiri maintained that the depositions made by Ms. Nderitu were based on her personal knowledge and belief, consistent with Order 19 Rule 3 of the Civil Procedure Rules, 2010.
The firm said she relied on information from other sources or documents, she explicitly disclosed the basis of such information.
He further averred that although Ms. Nderitu was not personally involved in the transactions between Nokia Corporation and Microsoft Mobile regarding the transfer of the Frame Repair Services Agreement, she was, by virtue of her position as Country Manager, privy to the operations and dealings of other Microsoft entities.
Microsoft East Africa ltd, being an affiliate of the Microsoft Group, operates various businesses within the region, and her knowledge of such matters cannot be dismissed as hearsay.
Lawyer Phiri added that the sale of Nokia’s business to the Microsoft Mobile was widely publicized in the mainstream media and remains accessible to the public, thereby rendering Ms. Nderitu’s depositions a matter of public knowledge rather than fabrication.
According to Kendi Nderitu affidavit, Microsoft East Africa ltd has never had any involvement with the Technoservice and the company has therefore been wrongly joined in these proceedings.
She further stated that t was evident from the reading of the claim that the dispute relates to various contractual agreements entered into between the Plaintiff and Nokia Corporation including its affiliates.
“I am aware that Microsoft Mobile Oy was subsequently
founded by the Microsoft group for the specific purpose of purchasing and operating Nokia’s former devices & services business essentially Nokia’s mobile phones division.Consequently, the agreements between the Technoservice ltd and Nokia Corporation were transferred to the Microsoft Mobile OY,” she stated on the affidavit.
Kendi Nderitu further stated that from a reading of the two Agreements, it was evident that whereas the Agreements were between Technoservice ltd and Nokia Corporation and its affiliates, Technoservice ltd has sought to introduce new parties that have not had any dealings with Technoservice ltd such asMicrosoft East Africa ltd.
She also stated that was clear from a reading of the Amended Plaint that the dispute arises substantially from the said Agreements and one of the issues raised by the Plaintiff at paragraphs 30 to 33 is whether Nokia Corporation could transfer or assign the rights and obligations relating to the said Agreements to Microsoft Mobile Oy.
“In the premises and notwithstanding the addition of accessory parties to the dispute such as Microsoft East Africa ltd , it can easily be gleaned from the pleadings that the substance of the dispute arises from or is in connection with the two Agreements,” said Kendi Nderitu in the affidavit.
She further said that the introduction of parties who were never involved with the two Agreements is merely intended to cloud the dispute and cause confusion in the matter.
“I am aware that on 25th April 2014. Microsoft Mobile Oy. the 2nd Defendant herein, took over Nokia Corporation’s Devices & Services business pursuant to a Stock and Asset Purchase Agreement (SAPA) dated 2nd September 2013. Under the SAPA and related documentation, the 2nd Defendant received certain equity interests and assets and assumed all liabilities relating to the Nokia Devices & Services business as detailed in the SAPA,” she added in the affidavit.
