[2013] KEHC 5983 (KLR)

[2013] KEHC 5983 (KLR)

The court considered whether the application by the Official Receiver, supported by an affidavit sworn by State Counsel Mark Gakuru, violated Rule 9 of the Advocates Practice Rules and constituted an abuse of process. The court found that Rule 9 prohibits advocates from acting as both counsel and witness except on formal matters. The affidavit in question did not relate solely to formal matters, raising concerns about propriety. The court also examined whether the application was oppressive or intended to exert undue pressure on the debtor. After reviewing the objections and the nature of the application, the court determined that the preliminary objections raised substantial questions...

Citation
[2013] KEHC 5983 (KLR)
Parties
Plaintiff: Kenneth Maina Karite; Defendant: Jane Njeri
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
12 March 2013
Case Number
Constitutional Application 105 of 2001
Procedural Posture
Bankruptcy Cause / Ruling on Preliminary Objections
Outcome
preliminary objections upheld; application struck out
Legal Topics
Preliminary Objection, Advocate Ethics, Abuse of Process
Source Language
English
Civil Procedure Preliminary Objection Advocate Ethics Abuse of Process

Case Brief

Summary, issues, holding and outcome

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Parties

Kenneth Maina Karite

Plaintiff

Jane Njeri

Defendant

Procedural Posture

Bankruptcy Cause / Ruling on Preliminary Objections

Legal Issues

  1. 1 Whether the conduct of State Counsel Mark Gakuru violates Rule 9 of the Advocates Practice Rules.
  2. 2 Whether an application relying on an affidavit sworn by counsel himself is perjured or tainted with malice.
  3. 3 Whether the application is oppressive and intended to exert undue pressure on the debtor.

Ratio Decidendi

The court considered whether the application by the Official Receiver, supported by an affidavit sworn by State Counsel Mark Gakuru, violated Rule 9 of the Advocates Practice Rules and constituted an abuse of process. The court found that Rule 9 prohibits advocates from acting as both counsel and witness except on formal matters. The affidavit in question did not relate solely to formal matters, raising concerns about propriety. The court also examined whether the application was oppressive or intended to exert undue pressure on the debtor. After reviewing the objections and the nature of the application, the court determined that the preliminary objections raised substantial questions...

Court Disposition

preliminary objections upheld; application struck out

Orders

  • The application dated 23rd August, 2007 is struck out.
  • No order as to costs.