[2005] KEHC 907 (KLR)
The court held that the respondents' reasons for delay in serving the replying affidavit were unconvincing and that the failure to disclose the drawer of the affidavit, as mandated by Section 35(1) of the Advocates Act, constituted an incurable defect. The court found that the statutory requirement applies to all...
Source-derived case information.
- Citation
- [2005] KEHC 907 (KLR)
- Parties
- Plaintiff: Fredblack Insurance Brokers Ltd; Defendant: Harro Trempenau; Defendant: Kim Mackenzie; Defendant: Adrian Luckhurst; Defendant: Aero Club of East Africa
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 827 of 2005
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection to Replying Affidavit
- Outcome
- preliminary objection upheld; replying affidavit struck out; application to proceed ex parte
- Judges
- CN Mugo
- Legal Topics
- Affidavit Defects, Preliminary Objection, Service of Documents, Advocates Act Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredblack Insurance Brokers Ltd
Plaintiff
Harro Trempenau
Defendant
Kim Mackenzie
Defendant
Adrian Luckhurst
Defendant
Aero Club of East Africa
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection to Replying Affidavit
Legal Issues
- 1 Whether the replying affidavit should be struck out for late service contrary to prescribed timelines.
- 2 Whether failure to disclose the drawer of the affidavit as required by Section 35 of the Advocates Act is a fatal defect.
Ratio Decidendi
The court held that the respondents' reasons for delay in serving the replying affidavit were unconvincing and that the failure to disclose the drawer of the affidavit, as mandated by Section 35(1) of the Advocates Act, constituted an incurable defect. The court found that the statutory requirement applies to all affidavits and is mandatory, and that non-compliance cannot be cured by the Civil Procedure Rules. The replying affidavit was therefore struck out and expunged from the record, and the application was ordered to proceed ex parte.
Court Disposition
preliminary objection upheld; replying affidavit struck out; application to proceed ex parte
Orders
- The respondents' replying affidavit is struck out and expunged from the record.
- The application shall proceed ex parte on a date to be fixed at the Registry.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL SUIT 827 OF 2005
FREDBLACK INSURANCE BROKERS LTD……….……………….. PLAINTIFF
VERSUS
HARRO TREMPENAU…………………………..….…………… 1ST DEFENDANT
KIM MACKENZIE………………………………………………. 2ND DEFENDANT
ADRIAN LUCKHURST………………………………………… 3RD DEFENDANT
AERO CLUB OF EAST AFRICA………………….…………... 4TH DEFENDANT
RULING
The applicant in the Chamber Summons dated 30th September 2005 has, as a preliminary point of law challenged the Respondents Replying Affidavit filed on 12th October 2005 on the grounds that
(1) The Respondents did not serve the same within the prescribed time, that is, three clear days prior to the inter partes hearing
(2) That the same is fatally defective and should be struck out for failing to disclose the drawer thereof as required under Section 35 of the Advocates Act.
Counsel for the Applicant cited the authority of JOHANNE DISTELBERGER – vs- JOSHUA KIVINDU MUINDI & ANOTHER H.C. MISC. CIV. APPLICATION NO. 1587 OF 2003 in support of the objection.
The Respondent’s response to the objection is that the application having been served on them on 5th October 2005 a Replying Affidavit could not be filed sooner as the deponent was away and 10th October 2005 was a holiday. Counsel for the Respondent submitted that there could not have been three clear days to give in the circumstances.
As regards the non-disclosure of the drawer of the affidavit the Respondents are of the view that the defect is not incurable but curable under Order 18 of the Civil Procedure Rules which, according to the Counsel for the Respondent ought to be relied on as it applies specifically to affidavits unlike Section 35 of the Advocates Act which, according to him, is intended to prohibit unqualified persons from “collecting fees for documents drawn by them when not qualified to do so”.
The reasons for delay in serving the Replying Affidavit 3 clear days before the inter partes hearing are not convincing. As regards the second objection I am persuaded that the failure to disclose the drawer of the Replying affidavit constitutes an incurable defect as held in the authority cited by the Applicant and also in my own Ruling in H.C.C.C. No. 41 of 2004 HANNS-SEIDEL-STIFTUNG NAIROBI -vs- ARMITLAL SHETH & ANOTHER wherein the guilty party presented an argument similar to the one presented by the Respondents herein.
It is clear from the wording of Section 35(1) that it refers and applies to:
“every personwho draws…… or causes to be drawn… any document or instrument referred to in Section 34(1)…. (of the Advocates Act)
An affidavit is one such document under Section 34 (1) (e) and the provisions of Section 35 (1) are mandatory. They apply to both advocates and non advocates alike. In my considered view failure to adhere to the same is incurable.
In the premises the objection herein is upheld. The Replying Affidavit is therefore struck out and expunged from the record. The application shall proceed ex parte on a date to be fixed at the Registry.
Dated and Delivered at Nairobi this 18th day of October 2005.
M.G. Mugo
Judge
In the presence of
Mr. Nduati for the Plaintiff
Mr. Mugambi for the Defendant