[2020] KEHC 9379 (KLR)
The court held that the plaintiff's application to strike out the defence was procedurally defective because the supporting affidavit did not annex or verify the documents relied upon as required by Rule 9 of the Oaths and Statutory Declarations Rules. The court emphasized that affidavits constitute the evidence...
Source-derived case information.
- Citation
- [2020] KEHC 9379 (KLR)
- Parties
- Plaintiff: Jungle Energy (K) Limited; Defendant: Rwathia Distributors Limited, Kiewa Group Limited & Viatech Services Limited Consortium (R.K.V. Consortium)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case E290 of 2019
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Defence
- Outcome
- Plaintiff granted opportunity to rectify procedural error; further directions to be given.
- Judges
- DAS Majanja
- Legal Topics
- Striking Out of Pleadings, Affidavit Evidence, Summary Judgment, Verification of Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jungle Energy (K) Limited
Plaintiff
Rwathia Distributors Limited, Kiewa Group Limited & Viatech Services Limited Consortium (R.K.V. Consortium)
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Defence
Legal Issues
- 1 Whether the plaintiff's application to strike out the defence is properly supported by affidavit evidence as required by law.
- 2 Whether documents relied upon in support of the application must be annexed and verified on oath.
Ratio Decidendi
The court held that the plaintiff's application to strike out the defence was procedurally defective because the supporting affidavit did not annex or verify the documents relied upon as required by Rule 9 of the Oaths and Statutory Declarations Rules. The court emphasized that affidavits constitute the evidence upon which the court acts, and any exhibits must be properly annexed and verified. However, in light of the overriding objective, the court granted the plaintiff an opportunity to rectify the procedural error before further directions are given.
Court Disposition
Plaintiff granted opportunity to rectify procedural error; further directions to be given.
Orders
- Plaintiff to rectify the error in the supporting affidavit by properly annexing and verifying documents relied upon.
- Directions to be given upon delivery of this ruling.
Full Case Text
Judgment text and source record
24 paragraphs
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL AND TAX DIVISION
CORAM: D. S. MAJANJA J.
CIVIL CASE NO. E290 OF 2019
BETWEEN
JUNGLE ENERGY (K) LIMITED..............................PLAINTIFF
AND
RWATHIA DISTRIBUTORS LIMITED,
KIEWA GROUP LIMITED & VIATECH
SERVICES LIMITED CONSORTIUM
(R.K.V. CONSORTIUM)..........................................DEFENDANT
RULING
1. The plaintiff has moved the court by Notice of Motion dated 15th November 2019 invoking, inter alia, Order 2 rule 15(1)(a)(b)(c) and (d) of the Civil Procedure Rules(“the Rules”) praying that the Defence herein be struck out and judgment be entered as prayed in the Plaint.
2. The application is supported by the affidavit of Evans Karanja Githae, the plaintiff’s Market Agent, sworn on 15th November 2019. At paragraph 3 thereof he states as follows:
[3] To avoid duplication of documents, I will refer to the documents filed contemporaneously with the plaint which I would like to produce as evidence in this court.
3. Now it is mandatory that the application filed by the plaintiff be supported by an affidavit as the affidavit constitutes the evidence upon which the court acts. The affidavit in support of the application does not contain the annextures and the documents filed in support of the plaint have not been verified on oath. As the application is one that seeks a summary hearing of the claim, the documents relied upon must be annexed to the affidavit and verified as required by Rule 9 of the Oaths and Statutory Declarations Rules which provides that -
All exhibits to Affidavits shall be securely sealed thereto under the seal of the Commissioner, and shall be marked with serial letters of identification.”
4. In light of the overriding objective, I grant the plaintiff the opportunity to rectify the error and shall give direction upon the delivery of this ruling.
DATED and DELIVERED at NAIROBI this 20th day of FEBRUARY 2020.
D. S. MAJANJA
JUDGE
Mr Kigata instructed by Wamae and Allen Advocates for the plaintiff.
Mr Mutai instructed by Maina and Maina Advocates for the defendant.