The High Court has dismissed a request by a Kenyan company to cross-examine a former Microsoft East Africa country manager over an affidavit in a contractual dispute involving the tech giant and its affiliates.
Justice Peter Mulwa ruled that Technoservice Limited had not provided sufficient justification to warrant the questioning of former Microsoft official Kendi Nderitu.
The firm had sought her cross-examination, claiming it lost investments and anticipated income after several Nokia Service Centres it allegedly set up in partnership were later absorbed by Microsoft.
Technoservice director Bulent Gulbahar argued that Nderitu’s affidavit contained contradictions, noting that while she denied Microsoft’s involvement, she also stated that Microsoft Mobile OY took over obligations and liabilities. He accused her of presenting inconsistent and incoherent statements and went further to allege perjury, fabrication, and forgery of documents.
The judge, however, found that such claims required stronger backing. “In the instant case, the applicant (Technoservice) has merely pointed to contradictions without producing any independent material to establish deliberate falsehood,” he said.
Justice Mulwa added that the cited contradictions were matters of interpretation of corporate arrangements and could be addressed through submissions and documentary evidence without resorting to cross-examination.
“I reiterate that cross-examination on affidavits is not a matter of course. The burden rests upon the applicant to demonstrate that such an order is indispensable for a fair and just determination of the dispute,” he stated.
Microsoft opposed the application, maintaining that although Nderitu had since left the company, her role as country manager meant she was familiar with affiliate operations.
The court was told that some of the issues she mentioned, such as Nokia’s business transfer to Microsoft Mobile OY, were already public information and within her competence.
The court also heard that while Nderitu was not directly involved in transactions between Nokia Corporation and Microsoft Mobile OY regarding the transfer of the Frame Repair Services Agreement, her position exposed her to the operations and dealings of Microsoft entities.
