[2006] KEHC 3333 (KLR)

[2006] KEHC 3333 (KLR)

The court held that the placement of the jurat on a separate page from the text of the affidavit does not render the affidavit fatally defective under Kenyan law. Order 18 rule 7 of the Civil Procedure Rules allows the court to accept affidavits with defects in form, and Section 5 of the Oaths and Statutory...

Source-derived case information.

Citation
[2006] KEHC 3333 (KLR)
Parties
Plaintiff: Jimoko Enterprises Ltd; Defendant: Deposit Protection Fund Board; Defendant: Gilbert Mwinga; Defendant: Gami Properties Ltd
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Case Number
Civil Suit 514 of 2005
Procedural Posture
Civil Suit / Ruling on Preliminary Objection to Amended Chamber Summons
Outcome
preliminary objection overruled; application to proceed to substantive hearing
Legal Topics
Preliminary Objection, Affidavit Formalities, Equity of Redemption, Injunctive Relief, Mortgage Sale, Transfer of Property
Source Language
en
Civil Procedure Land and Property Preliminary Objection Affidavit Formalities Equity of Redemption Injunctive Relief Mortgage Sale Transfer of Property

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Summary, issues, holding and outcome

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Parties

Jimoko Enterprises Ltd

Plaintiff

Deposit Protection Fund Board

Defendant

Gilbert Mwinga

Defendant

Gami Properties Ltd

Defendant

Procedural Posture

Civil Suit / Ruling on Preliminary Objection to Amended Chamber Summons

Legal Issues

  1. 1 Whether the affidavit supporting the application was fatally defective due to the jurat being on a separate page from the text.
  2. 2 Whether the plaintiff's application for interlocutory injunction was misconceived in light of the alleged sale of the charged property and Section 60 of the Transfer of Property Act.
  3. 3 Whether the preliminary objection raised pure points of law or required ascertainment of facts.

Ratio Decidendi

The court held that the placement of the jurat on a separate page from the text of the affidavit does not render the affidavit fatally defective under Kenyan law. Order 18 rule 7 of the Civil Procedure Rules allows the court to accept affidavits with defects in form, and Section 5 of the Oaths and Statutory Declarations Act does not require the jurat to be on the same page as the text. The court further found that the issue of whether the equity of redemption was extinguished could not be determined at the preliminary objection stage because there was a factual dispute regarding which property was actually sold. Since the property descriptions differed between the mortgage and the sale...

Court Disposition

preliminary objection overruled; application to proceed to substantive hearing

Orders

  • The preliminary objection is overruled with costs to the plaintiff.
  • The application shall proceed to substantive hearing.