[2001] KEHC 592 (KLR)
The court found that the preliminary objection regarding the commissioning of the affidavit was based on a misconception of fact, as the advocate who commissioned the affidavit was not yet on record for the defendants at the material time. The objection to multiple affidavits was dismissed as unfounded, as there is...
Source-derived case information.
- Citation
- [2001] KEHC 592 (KLR)
- Parties
- Plaintiff: Diamond Trust Bank Kenya Limited; Defendant: Bosongo Medical Centre Limited; Defendant: Dr. Solomon Omwega Omache; Defendant: Sara G. Angina Omwega
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1883 of ??
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled with costs
- Judges
- T Mbaluto
- Legal Topics
- Affidavit Commissioning, Preliminary Objection, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Diamond Trust Bank Kenya Limited
Plaintiff
Bosongo Medical Centre Limited
Defendant
Dr. Solomon Omwega Omache
Defendant
Sara G. Angina Omwega
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the replying affidavit was improperly commissioned contrary to Section 4(1) of the Oaths and Statutory Declarations Act.
- 2 Whether multiple affidavits may be filed in support of the same application.
- 3 Whether the third preliminary point remains relevant.
Ratio Decidendi
The court found that the preliminary objection regarding the commissioning of the affidavit was based on a misconception of fact, as the advocate who commissioned the affidavit was not yet on record for the defendants at the material time. The objection to multiple affidavits was dismissed as unfounded, as there is no legal bar to such practice. The third point raised was deemed moot and overtaken by events. Consequently, the preliminary objection was overruled with costs awarded against the objector.
Court Disposition
preliminary objection overruled with costs
Orders
- The preliminary objection is overruled.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL CASE NO. 1883 OF 2000
DIAMOND TRUST BANK KENYA LIMITED ………….. PLAINTIFF VERSUS BOSONGO MEDICAL CENTRE LIMITED ……… 1ST DEFENDANT DR. SOLOMON OMWEGA OMACHE …………… 2ND DEFENDANT SARA G. ANGINA OMWEGA …………………….. 3RD DEFENDANT
RULING
When this matter came up for hearing, Mr. Dar for the respondent raised a preliminary point in which he argued that the replying affidavit sworn on 24. 8.2001 by Dr. Solomon Omwenga Omache does not comply with Section 4(1) of the Oaths and Statutory Declaration Act in that it was commissioned by the advocate acting for the defendant. That point is however based on a misconception of the facts for it is clear from the record that as at 24. 8.2001 when Mr. Mogere Advocate commissioned the affidavit, he was not yet on record as the advocate for the defendants, his appointment having been effected and notice thereof filed only on 19. 9.2001.
The second point is clearly frivolous. It has never been the law that a party is not under any circumstances allowed to file more than one affidavit in support of the same application. As for the third point, I agree with Mr. Mainye for the respondent that the same has been overtaken by events. For all the above reasons, the preliminary objection is overruled with costs.
Dated at Nairobi this 26th day of October, 2001.
T. MBALUTO
JUDGE