[2007] KEHC 905 (KLR)
The court held that the failure to mark exhibits to an affidavit as required by the Oaths and Statutory Declaration Act and the Civil Procedure Rules is not a mere irregularity of form but a substantive defect. The exhibits must be marked with serial letters of identification and securely sealed to the affidavit....
Source-derived case information.
- Citation
- [2007] KEHC 905 (KLR)
- Parties
- Plaintiff: Ali El-Busaidy; Defendant: Kenya Commercial Bank
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 28 of 2007
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection Regarding Affidavit Exhibits
- Outcome
- Affidavit struck out with costs to the plaintiff.
- Legal Topics
- Affidavit Exhibits, Oaths and Statutory Declarations, Striking Out Affidavit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ali El-Busaidy
Plaintiff
Kenya Commercial Bank
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection Regarding Affidavit Exhibits
Legal Issues
- 1 Whether the affidavit exhibits not marked as required by law render the affidavit defective and liable to be struck out.
Ratio Decidendi
The court held that the failure to mark exhibits to an affidavit as required by the Oaths and Statutory Declaration Act and the Civil Procedure Rules is not a mere irregularity of form but a substantive defect. The exhibits must be marked with serial letters of identification and securely sealed to the affidavit. Since the exhibits in question were not marked as required, the affidavit was defective and invalid. Consequently, the affidavit was struck out with costs to the plaintiff.
Court Disposition
Affidavit struck out with costs to the plaintiff.
Orders
- The affidavit of Evans O Olwali sworn on 18th May 2007 is struck out.
- Costs awarded to the plaintiff.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MALINDI
Civil Case 28 of 2007
ALI EL-BUSAIDY…………………..…...…. PLAINTIFF
VERSUS
KENYA COMMERCIAL BANK …………………DEFENDANT
R U L I N G
At the hearing of the application by way of Chamber Summons dated 10th December 2001, pursuant to the provisions of Order XXXIX Rules 1,2 and 2A of the Civil Procedure Rules, Mr Mulwa for the applicant raised a preliminary point that replying affidavit sworn on the 7th January 2004 be struck out on the grounds that all the exhibits are not marked as required by law.
Mr Waweru for the respondent conceded that the exhibits are not marked on the face of the said affidavits. However, the markings are on separate blank pink paper at the end of each exhibit.
Rules 9 and 10 of the Oaths and Statutory Declaration Act (Cap 15) Laws of Kenya provides:
“9. All exhibits to affidavits shall be securely sealed thereto under the seal of the commissioner, and shall be marked with serial letters of identification.
10. The forms of jurat and of identification of exhibits shall be those set out in the Third Schedule.”
Where the exhibits to an affidavit do not have form of identification of exhibits as provided for in the Third Schedule, the exhibits are defective and invalid (see COQUEST TRADIT ORBIT – VS – SPECIALISED LIGHTING SYSTEMS LTD NAIROBI (MILIMANI) HIGH COURT CIVIL CASE NO. 1251 OF 2002 (MOHAMMED IBRAHIM J on 5th August 2005)
The above indicated exhibits are not merely irregularities in form but substance. In the premises, I strikeout the affidavit of Evans O Olwali sworn on the 18th May 2007 with costs to the plaintiff.
Dated and Delivered on 21st Day of February 2007
N.R.O. OMBIJA
JUDGE