[2017] KEELC 2361 (KLR)
The court held that an unsigned affidavit is invalid and cannot properly convey or verify facts in support of an application. Since the amended supporting affidavit was unsigned, the application was rendered bare and incompetent. The defect was not curable by amendment, and the only recourse for the applicants was...
Source-derived case information.
- Citation
- [2017] KEELC 2361 (KLR)
- Parties
- Applicant: Francis Waiganjo Kimanga; Applicant: Lucy Wanjiru Kimanga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 36 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection/competency of Application
- Outcome
- application struck out as incompetent
- Judges
- CK Yano
- Legal Topics
- Affidavit Validity, Striking Out Applications, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Waiganjo Kimanga
Applicant
Lucy Wanjiru Kimanga
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection/competency of Application
Legal Issues
- 1 Whether an unsigned affidavit can support a Notice of Motion application.
- 2 Whether the defect of an unsigned affidavit is curable by amendment.
- 3 Whether the application is competent in the absence of a valid supporting affidavit.
Ratio Decidendi
The court held that an unsigned affidavit is invalid and cannot properly convey or verify facts in support of an application. Since the amended supporting affidavit was unsigned, the application was rendered bare and incompetent. The defect was not curable by amendment, and the only recourse for the applicants was to file a fresh application. Consequently, the application was struck out as defective.
Court Disposition
application struck out as incompetent
Orders
- The amended ex-parte Notice of Motion dated 5th August 2016 is struck out.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
MISC APPLICATION NO.36 OF 2015
1. FRANCIS WAIGANJO KIMANGA
2. LUCY WANJIRU KIMANGA ………………………………………APPLICANTS
RULING
1. The application for determination is the amended ex-parte Notice of Motion dated 5th August 2016. It is brought under the provisions of section 13 of the Environment and Land Court Act, Sections 1A, 1 B, 3, 3A, 63 (c) and (e) of Civil Procedure Act and Order 51 of the Civil Procedure Rules 2010 and all enabling provisions of the law.
The application is grounded on several grounds listed on the face of the application and the amended supporting affidavit of Francis Waiganjo Kimanga sworn on 5th August 2016. The said amended supporting affidavit is unsigned. Without going into the merits or demerits of the application, it is clear that the said amended supporting affidavit contains facts that are meant to support the application. As I see it, it is only a signed affidavit that can properly convey facts. An affidavit that is not signed is not authenticated and is invalid and incapable of verifying the accompanying statements of facts. It is the view of the court that allowing the applicant to proceed on the basis of a defective affidavit which is unsigned would be improper.
It is also the view of this court that the defect may in the circumstances not be curable by amendment. Relying on an unsigned affidavit, in my view renders the application bare and incompetent and therefore suitable for striking out. As I see it, the applicant’s only option is to file a fresh application. The application as currently presented is defective and is hereby struck out.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 11TH APRIL 2017
C. YANO
JUDGE
In the presence of: