[2009] KEHC 602 (KLR)
The court found that the plaintiff's affidavit was a forgery because he was not present in Kenya at the time it was purportedly sworn, as confirmed by his own counsel. The court held that this amounted to perjury and contempt of court. The plaintiff's attempt to withdraw the suit was deemed an effort to evade the...
Source-derived case information.
- Citation
- [2009] KEHC 602 (KLR)
- Parties
- Plaintiff: Khalef Khamis Ahmed; Defendant: Ashvinkumar C. Doshi; Defendant: Jayprakash C. Doshi
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 316 of 2007
- Procedural Posture
- Civil Suit / Ruling on Notice of Withdrawal and Contempt
- Outcome
- Suit dismissed with costs to the defendants as punishment for contempt of court.
- Legal Topics
- Withdrawal of Suit, Affidavit Forgery, Contempt of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Khalef Khamis Ahmed
Plaintiff
Ashvinkumar C. Doshi
Defendant
Jayprakash C. Doshi
Defendant
Procedural Posture
Civil Suit / Ruling on Notice of Withdrawal and Contempt
Legal Issues
- 1 Whether the plaintiff's affidavit was forged and constituted perjury and contempt of court.
- 2 Whether the plaintiff should be allowed to withdraw the suit without facing contempt proceedings.
- 3 Whether the suit should be dismissed with costs as a punitive measure for contempt.
Ratio Decidendi
The court found that the plaintiff's affidavit was a forgery because he was not present in Kenya at the time it was purportedly sworn, as confirmed by his own counsel. The court held that this amounted to perjury and contempt of court. The plaintiff's attempt to withdraw the suit was deemed an effort to evade the consequences of his misconduct. Exercising its discretion, the court struck out the notice of withdrawal and dismissed the suit with costs to the defendants as a punitive measure for contempt, emphasizing that such conduct cannot be tolerated or go unpunished by the court.
Court Disposition
Suit dismissed with costs to the defendants as punishment for contempt of court.
Orders
- Notice of withdrawal of suit struck out.
- Suit dismissed with costs to the defendants as punishment for contempt of court.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT MOMBASA
Civil Suit 316 of 2007
KHALEF KHAMIS AHMED ……………………………………….PLAINTIFF
VERSUS
ASHVINKUMAR C. DOSHI
JAYPRAKASH C. DOSHI ……………………………………….DEFENDANTS
R U L I N G
I have considered the Notice of Withdrawal and the submissions by consent. The court had ordered that the plaintiff do attend court personally to be examined on his affidavit sworn on 30. 10. 09.
The plaintiff did not attend court today but instead filed a notice of withdrawal of the suit. His counsel Mr. Ojode confirms that the plaintiff is actually in Hong Kong as stated earlier. The court did not accept that plaintiff could have been in Hong Kong on 29. 10. 09 since the affidavit was sworn on 30. 10. 09.
The foregoing proves that in fact the signature of the plaintiff on the affidavit is a forgery. The plaintiff could not have signed since he was in Hong Kong a fact which I now believe.
As pointed out by Mr. Nanji that while Counsel and court are not handwriting experts, the signature in the affidavit and those of plaintiff in other documents including the verifying affidavits are totally different. The signature on the affidavit is a forgery. Someone procured it at the instance of the plaintiff. This act amounts to perjury and contempt of this court.
I do hold that the plaintiff is in contempt of this court. The plaintiff cannot be allowed to exit from this suit without appropriate pudging of the contempt. He otherwise must be punished.
Under Order 24, rule II, the plaintiff has the right to file another suit. The plaintiff is likely to file another suit and the Notice of withdrawal is to escape facing perjury charges and contempt proceedings. This court shall not make it easy for him. What he did is wholly unacceptable and shall not be allowed by this court to go unpunished.
In exercise of this court’s jurisdiction and discretion I do hereby strike out the Notice of Withdrawal of the suit. As punishment to this plaintiff for contempt of court, I do hereby dismiss the suit with costs to the defendant.
Orders accordingly.
Dated and delivered at Mombasa this 6th day of November 2009.
M. K. IBRAHIM
J U D G E
In the presence of Mr. Kanji for defendant and Mr. Ojode for the plaintiff.