[2007] KEHC 2726 (KLR)

[2007] KEHC 2726 (KLR)

The court found that the affidavit of service by Harrison Ogolla, being direct evidence from the process server, was more credible than the hearsay affidavit of receipt by the respondents' clerk. The court accepted that service of the further affidavit was effected within the time ordered by the court. Although the affidavit of service was filed one day late, the court exercised its discretion to enlarge time and deemed the affidavit of service as properly filed. Consequently, the further affidavit of the 2nd applicant was found to be properly on record, and the applicants were permitted to refer to and use it in the proceedings.

Citation
[2007] KEHC 2726 (KLR)
Parties
Applicant: The Chambers of Justice; Applicant: Gospel Bible Baptist Mission (GBBM); Respondent: Alfred Robert Lackey; Respondent: Kids Alive International; Respondent: Kids Alive Kenya Registered Trustees
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
16 November 2007
Case Number
Civil Suit 14 of 2007
Procedural Posture
Civil Suit / Ruling on Preliminary Objection Regarding Admissibility of Further Affidavit
Outcome
Application to admit further affidavit allowed; time for filing affidavit of service enlarged.
Judges
BP Kubo
Legal Topics
Affidavit Service, Extension of Time, Children Act Proceedings, Admissibility of Evidence
Source Language
English
Civil Procedure Family and Children Affidavit Service Extension of Time Children Act Proceedings Admissibility of Evidence

Case Brief

Summary, issues, holding and outcome

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Parties

The Chambers of Justice

Applicant

Gospel Bible Baptist Mission (GBBM)

Applicant

Alfred Robert Lackey

Respondent

Kids Alive International

Respondent

Kids Alive Kenya Registered Trustees

Respondent

Procedural Posture

Civil Suit / Ruling on Preliminary Objection Regarding Admissibility of Further Affidavit

Legal Issues

  1. 1 Whether the further affidavit of the 2nd applicant was served within the time ordered by the court.
  2. 2 Whether the affidavit of service filed by the applicants should be accepted despite being filed out of time.
  3. 3 Whether the applicants may refer to and use the further affidavit in the proceedings.

Ratio Decidendi

The court found that the affidavit of service by Harrison Ogolla, being direct evidence from the process server, was more credible than the hearsay affidavit of receipt by the respondents' clerk. The court accepted that service of the further affidavit was effected within the time ordered by the court. Although the affidavit of service was filed one day late, the court exercised its discretion to enlarge time and deemed the affidavit of service as properly filed. Consequently, the further affidavit of the 2nd applicant was found to be properly on record, and the applicants were permitted to refer to and use it in the proceedings.

Court Disposition

Application to admit further affidavit allowed; time for filing affidavit of service enlarged.

Orders

  • The further affidavit of the 2nd applicant sworn on 25.10.07 is deemed to have been filed and served within time.
  • Applicants may refer to and use the further affidavit in these proceedings.