[2004] KEHC 1317 (KLR)
The court found that although the affidavit was filed without leave and served late, its contents were so closely interwoven with the main issues of the suit that admitting it would serve the interests of justice. The court held that procedural irregularities should not override substantive justice, especially where...
Source-derived case information.
- Citation
- [2004] KEHC 1317 (KLR)
- Parties
- Plaintiff: Belgo Holdings Limited; Defendant: Robert Kotch Otachi; Defendant: Wilson Birir
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 454 of 2004
- Procedural Posture
- Civil Suit / Interlocutory Application Ruling on Admissibility of Affidavit
- Outcome
- Affidavit admitted; defendants granted leave to reply; costs to plaintiff/applicant.
- Legal Topics
- Affidavit Admissibility, Service of Documents, Leave of Court, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Belgo Holdings Limited
Plaintiff
Robert Kotch Otachi
Defendant
Wilson Birir
Defendant
Procedural Posture
Civil Suit / Interlocutory Application Ruling on Admissibility of Affidavit
Legal Issues
- 1 Whether the affidavit filed by the plaintiff/applicant without leave of the court should be admitted into the record.
- 2 Whether service of the affidavit on the defendants/respondents complied with the Civil Procedure Rules.
Ratio Decidendi
The court found that although the affidavit was filed without leave and served late, its contents were so closely interwoven with the main issues of the suit that admitting it would serve the interests of justice. The court held that procedural irregularities should not override substantive justice, especially where the affidavit would clarify the issues before the court. Therefore, the affidavit and its annexures were admitted, and the defendants/respondents were granted time to file a reply.
Court Disposition
Affidavit admitted; defendants granted leave to reply; costs to plaintiff/applicant.
Orders
- The affidavit of James Ochieng Oduol, Advocate sworn on September 20, 2004 and filed in court on September 21, 2004 is admitted.
- The defendants/respondents are granted 14 days to file and serve any reply to the affidavit if they wish.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT
MILIMANI COMMERCIAL COURTS, NAIROBI
HCCC NO. 454 OF 2004
BELGO HOLDINGS LIMITED…………....………………….PLAINTIFF
-V E R S U S-
ROBERT KOTCH OTACHI ………………………….1ST DEFENDANT
WILSON BIRIR………………………………………2ND DEFENDANT
R U L I N G
On 22nd September, 2004, there came before the court for inter partes hearing of the application dated 12th August, 2004. Mr. Ochieng Oduol appeared for the plaintiff/applicant while Mr. Mogikoyo appeared for the defendant/respondent. Before the matter could proceed to hearing, Mr. Mogikoyo protested that he had been served with a long affidavit only the day before. That affidavit, he said had been put in without leave of the court.
Secondly, Mr. Mogikoyo submitted that he was entitled to at least three clear days, and yet he had been served only the day before. This was in contravention of O.50 Rule 16(1) of the Civil Procedure Rules. He therefore urged the court to strike out the affidavit. If however, the court was persuaded to admit it, he would need time to seek his client’s instructions and, if need be, he would also need time to put in an affidavit in reply.
In response, Mr. Ochieng Oduol started by referring to the “offending” affidavit and its contents. Mr. Mogikoyo opposed any reference to the contents of that affidavit as it had been filed without leave of the court and therefore it was not properly before the court. The court agreed with Mr. Mogikoyo and ordered Mr. Oduol to lay down the ground for the admission of the affidavit without reference to it. Mr. Oduol then took the court through the original bundle of documents in a bid to demonstrate that there was ample justification for the affidavit to be admitted. In reply Mr. Mogikoyo reiterated his earlier submission that the affidavit had been filed without leave, and counsel for the applicant had not said why he could not wait to seek court’s leave.
After hearing both counsel, I agree with Mr. Mogikoyo that some of the documents alluded to in the course of the arguments go to the very root of this case. In the circumstances, I would find it inappropriate to discuss their contents at this juncture as this would be going to the substance and merits of the main suit before the court. However, considering the issues in this matter, a quick look at Mr. Oduol’s affidavit with its annexures shows that the matters deponed to therein are so closely interwoven with the main issues that it will no doubt serve to clarify the issues before the court. It is my considered view, therefore, that the justice of this case requires that the affidavit and its annexures be admitted.
By reason thereof, it is ordered that the affidavit of James Ochieng Oduol, Advocate sworn on September 20, 2004 and filed in court on September 21, 2004 be and is hereby admitted. The defendants/respondents are granted 14 days within which to file and serve any reply thereto if they so wish.
The plaintiff/applicant will meet the costs of this application.
Dated and delivered at Nairobi this 8th day of October 2004
L. NJAGI
JUDGE