A judge has rejected an application by a Kenyan firm that has sued the giant tech company Microsoft and its affiliates to question a former Microsoft East Africa country manager over an affidavit filed in court.
High Court judge Peter Mulwa said that Technoservice Limited had not demonstrated sufficient grounds to justify the cross-examination of the official Kendi Nderitu.
Technoservice Ltd is suing Microsoft for breach of contract after the company acquired Nokia’s business in 2014.
The firm alleges that it lost investments and expected earnings after Microsoft took over several Nokia Service Centres that it had allegedly established jointly.
Bulent Gulbahar, a director of Technoservice, claimed that Ms Nderitu, the former Microsoft East Africa boss, had mentioned in the affidavit matters relating to her employer, Microsoft Mobile OY and Nokia, yet denied involvement of Microsoft while simultaneously asserting that Microsoft Mobile OY had assumed liabilities and obligations.
He also said that the affidavit contained inconsistent, incoherent and conflicting statements, as well as allegations of perjury, fabrication and forgery of documents.
The judge, however, said that the allegations of perjury and forgery were serious enough to require cogent and credible evidence.
“In the instant case, the applicant (Technoservice) has merely pointed to contradictions without producing any independent material to establish deliberate falsehood,” said the judge.
Justice Mulwa added that the alleged contradictions were matters of interpreting corporate arrangements that could be adequately be addressed through submissions and documentary evidence, without the need for 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,” said the judge.
Microsoft had opposed the application, stating that the issues Ms Nderitu raised in the affidavit, such as the transfer of Nokia’s business to Microsoft Mobile OY, are matters of public record and widely publicised in the mainstream media and remained accessible to the public. This, the firm said, rendered Ms Nderitu’s statements a matter of public knowledge rather than fabrication.
Technoservice Limited had earlier sued Nokia Corporation, but the matter was referred to arbitration. In the case, TechnoService claimed it had been coerced into investing in the deal by establishing Nokia Care-branded service centres across the country.
These centres, which were established jointly with Nokia, were later transferred to Microsoft without TechnoService’s consent.
