[2009] KEHC 61 (KLR)
The court found that the matters deponed to by the advocate in the supporting affidavit were within the advocate's personal knowledge, as he had conduct of the suit. The affidavit disclosed the source of information as required by the rules, and the jurat complied with the relevant statutory requirements. The...
Source-derived case information.
- Citation
- [2009] KEHC 61 (KLR)
- Parties
- Appellant: Mahendra Kumar Shah; Respondent: National Bank of Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 645 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection to Supporting Affidavit in Stay Application
- Outcome
- preliminary objection overruled; application to proceed to hearing
- Judges
- GG Okwengu
- Legal Topics
- Affidavit Evidence, Preliminary Objection, Stay of Execution, Locus Standi of Advocate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mahendra Kumar Shah
Appellant
National Bank of Kenya Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection to Supporting Affidavit in Stay Application
Legal Issues
- 1 Whether an advocate has locus standi to swear an affidavit on behalf of a client regarding matters within the advocate's personal knowledge.
- 2 Whether the supporting affidavit complies with Order XVIII Rule 3 of the Civil Procedure Rules and Section 5 of the Oaths and Statutory Declaration Act.
- 3 Whether failure to properly identify annextures in the affidavit is a fatal defect or a mere irregularity.
Ratio Decidendi
The court found that the matters deponed to by the advocate in the supporting affidavit were within the advocate's personal knowledge, as he had conduct of the suit. The affidavit disclosed the source of information as required by the rules, and the jurat complied with the relevant statutory requirements. The failure to properly identify annextures was deemed a mere irregularity that did not invalidate the affidavit. Consequently, the preliminary objection was overruled, and the application was allowed to proceed to hearing.
Court Disposition
preliminary objection overruled; application to proceed to hearing
Orders
- The preliminary objection is overruled.
- The hearing of the notice of motion dated 25th November, 2008 shall proceed on a date to be fixed in the registry.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
CIVIL APPEAL 645 OF 2008
MAHENDRA KUMAR SHAH...................................APPELLANT
VERSUS
NATIONAL BANK OF KENYA LIMITED…......RESPONDENT
R U L I N G
1. A preliminary objection has been raised to the hearing of an application dated 25th November, 2008, on the grounds that it is supported by an affidavit sworn by M. Jevanjee Advocate who has no locus standi to depone to controversial issues of fact. It is also contended that the application is misconceived and an abuse of the court process.
2. The application dated 25th November, 2008is a notice of motion brought under Order XLI Rule 4 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking to stay the ruling and order issued in RMCC No.12552 of 2003 onthe 12th November, 2008 pending determination of the appeal. The deponent of the affidavit is an advocate of the High Court having conduct of the suit on behalf of the applicant, Mahendra Kumar Shah.
3. Mr. Milimo who raised the preliminary objection maintains that the advocate has deponed to controversial issues which could only be sworn by a party. In this regard, Mr. Milimo has identified paragraphs 4, 5, 9 & 10 of the affidavit sworn by M. Jevanjee. Mr. Milimo also maintains that the affidavit is defective as the advocate has not disclosed the source of his information as required under Order XVIII rule 3 of the Civil Procedure Rules. In support of his submission, Mr. Milimo relied on HCCC No.3504 of 1993 Kisya Investments Ltd & Another vs Kenya Finance Corporation Limited & Others. Further, Mr. Milimo maintains that the supporting affidavit does not comply with Section 10 of the Oaths and Statutory Declaration Act Cap 15, as the annextures have not been properly identified. In this regard Mr. Milimo relied on HCCC No.1251 of 2002 Cowest Trading GMBH vs Specialized Lightings Systems Ltd and HCCC No.152 of 1998 Dan Jacob Nyanjom vs Kiplelei Ltd. Further, it is maintained that the application is defective as the order it seeks to stay is an order of dismissal which is not capable of being stayed.
4. In response to the preliminary objection Mr. Adera who appeared for the applicant, maintained that the supporting affidavit does not contravene any mandatory rules. He submitted that the facts deponed to in the supporting affidavit were not contentious issues but matters on record. He argued that counsel was an agent of the client and therefore qualified to swear to matters within his knowledge. He maintained that the court has powers to ignore the defects regarding the failure to stamp the annextures.
5. In response Mr. Milimo maintained that Order XVIII Rule 7 of the Civil Procedure Rules which is a subsidiary legislation cannot override the provisions of Cap 15 which is a substantive legislation.
6. I have considered the supporting affidavit which was sworn by M. Jevanjee. I am satisfied that the matters deponed to by the counsel are matters which are all within the counsel’s knowledge having participated in the matter in his capacity as the applicant’s counsel. Matters deponed to in paragraph 4, 5 8, 9, & 10 of the supporting affidavit are all matters within counsel’s personal knowledge and counsel has disclosed this in paragraph 13 of the affidavit. The supporting affidavit therefore complies with Order XVIII Rule 3 of the Civil Procedure Rules. I find further that the jurat in the affidavit complies with Section 5 of the Oaths and Statutory Declaration Act. The annextures to the affidavit have not been properly identified as they have been marked as a bundle. That however is a mere irregularity which cannot vitiate the whole document. For that reason, I overrule the preliminary objection and order that the hearing of the notice of motion dated 25th November, 2008 shall proceed on a date to be fixed in the registry.
Dated and delivered this 5th day of June, 2009
H. M. OKWENGU
JUDGE
In the presence of: -
Kamau H/B for Adera for the applicant
Muthomi H/B for Milimo for the respondent