[2007] KEHC 925 (KLR)
The court found that the filing of two similar applications by the same counsel without withdrawing the first amounted to an abuse of the court process, rendering the second application improperly on record and subject to being struck out. Furthermore, the affidavit supporting the first application was undated,...
Source-derived case information.
- Citation
- [2007] KEHC 925 (KLR)
- Parties
- Applicant: Daniel Wepukhulu & Another; Respondent: Attorney General
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- ? 252 of 2000
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- Application struck out for procedural defects; no order as to costs.
- Judges
- J Karanja
- Legal Topics
- Abuse of Process, Affidavit Requirements, Limitation of Actions, Originating Summons, Notice of Motion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Wepukhulu & Another
Applicant
Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the filing of two similar applications by the same counsel constitutes an abuse of court process.
- 2 Whether an undated affidavit supporting an application is fatally defective under Kenyan law.
- 3 Whether the application brought by Notice of Motion without a valid affidavit is properly before the court.
Ratio Decidendi
The court found that the filing of two similar applications by the same counsel without withdrawing the first amounted to an abuse of the court process, rendering the second application improperly on record and subject to being struck out. Furthermore, the affidavit supporting the first application was undated, which is a fatal defect under Cap 15 of the Laws of Kenya, as affidavits must be properly dated and commissioned. The absence of a valid affidavit meant the application did not comply with the mandatory procedural requirements for applications under section 27 of the Limitation of Actions Act, which must be brought by Originating Summons and supported by affidavit. Consequently,...
Court Disposition
Application struck out for procedural defects; no order as to costs.
Orders
- The second application dated 15.5.2001 is struck out as an abuse of court process.
- The affidavit supporting the first application dated 28.9.2000 is struck out for being undated.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
Misc Civil Appli 252 of 2000
DANIEL WEPUKHULU& ANOTHER:::::::::::::::::::::::::::::: APPLICANTS
VRS
ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
RULING
After going through this file, I noticed that there were 2 similar applications, filed by the same counsel seeking similar reliefs. One is dated 28th September, 2000 and the other is dated 15. 5.2001. When the second one was filed the other application was still on record. Counsel should have withdrawn it first. Her conduct amounts to an abuse of the court process and it renders the 2nd application to be improperly on record. The same should and is hereby struck out. That leaves the 1st application dated 28/9/00/ I note that the same is supported by an affidavit which is not dated. An affidavit must indicate the date and place it is commissioned.
The failure to date an affidavit is fatal and it renders the same incurably defective for contravening the provisions of Cap 15 of the Laws of Kenya. Accordingly the said affidavit is struck out. OXXXVI (36) 3 C (1) of the Civil procedure Code explicitly provides for the mode and procedure of bringing to court an application based on section 27 of the Limitation of Actions Act. The same provides that:
“An application under section 27 of the Limitation of Actions Act made before filing a suit shall be made ex-parte by Originating Summons supported by affidavit.”
The application in question was brought to court by way of Notice of Motion under OLr.1 and 7 of the Civil Procedure Rules. The same is also not supported by an affidavit (it having been struck out) it therefore also calls for striking out and it is hereby struck out with no order as to costs.
W. KARANJA
JUDGE
DELIVERED and Dated at Bungoma this 13th day of February, 2007.