[2011] KEHC 3747 (KLR)
The court found that the affidavit sworn on 26/10/09 was filed more than a month after the expiry of the seven-day period granted by the court for filing a fresh affidavit. No application for extension of time was made by the defendant. Upon comparison, the contents of the two affidavits were identical except for...
Source-derived case information.
- Citation
- [2011] KEHC 3747 (KLR)
- Parties
- Plaintiff: Hesbon Jumba Shaban; Plaintiff: Phanice Ageyo Jumba; Defendant: National Bank of Kenya
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Case 9 of 2000
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; affidavit struck out
- Judges
- FN Muchemi
- Legal Topics
- Affidavit Striking Out, Extension of Time, Preliminary Objection, Duplicate Affidavit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hesbon Jumba Shaban
Plaintiff
Phanice Ageyo Jumba
Plaintiff
National Bank of Kenya
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the affidavit sworn on 26/10/09 should be struck out for being a duplicate of an earlier affidavit withdrawn from the record.
- 2 Whether the affidavit was filed out of time without leave of the court.
Ratio Decidendi
The court found that the affidavit sworn on 26/10/09 was filed more than a month after the expiry of the seven-day period granted by the court for filing a fresh affidavit. No application for extension of time was made by the defendant. Upon comparison, the contents of the two affidavits were identical except for the dates, confirming the duplication. The court held that the affidavit was incompetent for being filed out of time without leave and for duplicating a previously withdrawn affidavit. Consequently, the preliminary objection was upheld, and the affidavit was struck out for being improperly on record.
Court Disposition
preliminary objection upheld; affidavit struck out
Orders
- The affidavit sworn on 26/10/09 is struck out for being improperly on record.
- The defendant to meet the costs of this objection.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL CASE NO.9 OF 2000
HESBON JUMBA SHABAN)
PHANICE AGEYO JUMBA) ....................................................................................... PLAINTIFFS
VERSUS
NATIONAL BANK OF KENYA....................................................................................DEFENDANT
R U L I N G
The plaintiff in his preliminary objection dated 06/07/10 urges the court to strike out the affidavit of one Damaris Wanjiku Gitonga sworn on the 26/10/10 for offending the provisions of Order XLIX Rules 5,6,7 of the Civil Procedure Rules. Mr Benja for the plaintiff argued that the said affidavit is a duplicate of the earlier affidavit by the same deponent which was withdrawn from the record on 13/10/09. The Defendant is stopped under section 120 of the Civil Procedure from filing a duplicate of the same affidavit which was withdrawn. The affidavit was also filed out of the time given by the court.
Mr Omaya for the Defendant opposed the objection on grounds that the said affidavit is not a duplicate of the earlier affidavit. It was further submitted that the leave of the court was obtained to enlarge time. The affidavit is therefore properly on record.
I have perused the record of the court. It was on 13/10/09 that the affidavit of Damaris Wanjiku Gitonga was expunged from the record on application by the counsel for the Defendant. The Applicant was given seven days within which to file a fresh affidavit. The seven days were to expire on 20/10/09. The affidavit in issue now was filed on the 26/11/09 which was over one month after the time allowed by the court expired. It follows that the affidavit is incompetent for that reason. The record shows that the Defendant did not apply for extension of time.
On perusal of the contents of the two affidavits, I find that they are the same word by word and paragraph by paragraph. When the application to expunge the affidavit sworn on 29/09/09 was made, Mr Omaya said that the affidavit had the wrong date and that the Defendant wished to correct the date. The only difference I see in the two affidavits is the dates:
(a)when the affidavit was sworn and
(b)in paragraph 3 the date of the application
The first affidavit was sworn on 29/09/09 while the second one was sworn on the 26/10/09. In paragraph 3, the date of the application was changed from 19th May 2000 to read 19th May 2009. The Defendant was not specific on which date he intended to correct. Neither was this explained during the hearing of this objection. If it is only the date that was to be changed, then there is no harm done by duplicating the contents of the affidavit save the date. The case of Kotak Ltd Vs Kooverji & Another relied on by the plaintiff relates to a res judicata application. I find no relevance of the decision to the facts of this case.
To that extent the affidavit sworn on 26/10/09 was filed out of time without leave, I uphold the preliminary objection and hereby strike out the affidavit for being improperly on record. The Defendant to meet the costs of this objection.
F.N. MUCHEMI
JUDGE
Ruling dated and delivered in the presence of Mr Barasa for Gicheru for plaintiffs and Mr Makokha for Rachuonyo & Rachuonyo for defendant on the 9th March 2011.
F.N. MUCHEMI
JUDGE