[2001] KEHC 651 (KLR)
The court held that an advocate on record is presumed to have authority to act on behalf of the client throughout the proceedings, including swearing affidavits, and need not state each time that he has instructions. The objection that the affidavit was defective for not stating this was therefore frivolous....
Source-derived case information.
- Citation
- [2001] KEHC 651 (KLR)
- Parties
- Plaintiff: Japan Airlines Company Ltd.; Defendant: Duncan Mitchell
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1284 of 1999
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled with costs
- Judges
- T Mbaluto
- Legal Topics
- Security for Costs, Affidavit Requirements, Preliminary Objection, Authority of Advocate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Japan Airlines Company Ltd.
Plaintiff
Duncan Mitchell
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the affidavit sworn by the plaintiff's advocate is incurably defective for failing to state he had instructions from the plaintiff.
- 2 Whether the affidavit offends Order XVIII Rule 3 of the Civil Procedure Rules for not stating the source of information or grounds of belief.
Ratio Decidendi
The court held that an advocate on record is presumed to have authority to act on behalf of the client throughout the proceedings, including swearing affidavits, and need not state each time that he has instructions. The objection that the affidavit was defective for not stating this was therefore frivolous. Further, the court found that the objection based on Order XVIII Rule 3 of the Civil Procedure Rules was unfounded, as the objector did not identify any part of the affidavit containing statements of information or belief, making the requirement to disclose sources or grounds inapplicable. Consequently, the preliminary objection was overruled with costs to the plaintiff.
Court Disposition
preliminary objection overruled with costs
Orders
- The preliminary objection is overruled with costs to the plaintiff.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL CASE NO. 1284 OF 1999
JAPAN AIRLINES COMPANY LTD. ………………….. PLAINTIFF VERSUS DUNCAN MITCHELL ………………………………... DEFENDANT
RULING
On 23. 11. 2000, the defendant in this matter lodged an application under O. XXV Rules 1, 4, 5 and 6 of the Civil Procedure Rules for an order that the plaintiff do provide security for the whole of the costs of the defendant.
The application is supported by an affidavit sworn on 29. 9.2000 by the defendant. In response to the application, the plaintiff’s advocate Mr. Kiragu Kimani swore and filed a short replying affidavit in which he states that he has the conduct of the case; that he has read the defendant’s application dated 23. 11. 2000 together with the affidavit in support thereof and adds that the plaintiff will oppose the application on grounds set out in a document entitled ‘grounds of opposition’ annexed to his affidavit.
The applicant’s learned counsel has now raised a preliminary objection to the affidavit sworn by Mr. Kimani Kiragu and argues that the affidavit is incurably defective and ought to be struck out. The basis of that contention, as explained by Mr. Hassan is that Mr. Kiragu Kimani did not state that he had instructions from the plaintiff to swear the affidavit. That point is clearly frivolous because in my opinion, an advocate for a party to a matter has the authority throughout the entire proceedings to do all things that are necessary, including the swearing of any necessary affidavits, to defend and protect the interests of his client. He does not therefore have to repeat, whenever he takes action in a matter, that he has instructions to do this or that.
The second point argued by Mr. Hassan is that the affidavit offends O. XVIII Rule 3 of the Civil Procedure Rules in that Mr. Kiragu does not in the affidavit state what the sources of the information is and/or the grounds of his belief. Mr. Hassan did not however indicate what parts of Mr. Kiragu’s affidavit contained statements of information and/or belief and consequently the issues of disclosing such source and/or grounds of such belief does not arise. That point is also frivolous. In view of what is stated above, the authorities cited by Mr. Hassan are irrelevant.
For the above reasons, the preliminary objection is overruled with costs.
Dated at Nairobi this 9th day of March, 2001.
T. MBALUTO
JUDGE