[2018] KEHC 770 (KLR)
The court found that the issue of whether the applicant recanted his petition is a weighty and contested fact that cannot be determined solely on the basis of affidavits. The proper procedure is to resolve such contested matters through oral evidence. Striking out a petition is a drastic measure reserved for cases...
Source-derived case information.
- Citation
- [2018] KEHC 770 (KLR)
- Parties
- Applicant: Moses Mokoit; Respondent: The Defence Council; Respondent: Attorney General
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Petition 17 of 2013
- Procedural Posture
- Constitutional Petition / Ruling on Notice of Motion to Strike Out Petition
- Outcome
- notice of motion to strike out petition dismissed
- Judges
- HK Chemitei
- Legal Topics
- Striking Out Petitions, Affidavit Evidence, Recanting Affidavits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Mokoit
Applicant
The Defence Council
Respondent
Attorney General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Notice of Motion to Strike Out Petition
Legal Issues
- 1 Whether the petition should be struck out based on the applicant's alleged recanting of the petition via affidavit.
- 2 Whether contested facts regarding the recanting of the petition can be determined on affidavit evidence alone.
Ratio Decidendi
The court found that the issue of whether the applicant recanted his petition is a weighty and contested fact that cannot be determined solely on the basis of affidavits. The proper procedure is to resolve such contested matters through oral evidence. Striking out a petition is a drastic measure reserved for cases that are clearly hopeless or unmeritorious on their face, which is not the case here given the factual disputes. Therefore, the notice of motion to strike out the petition was dismissed, and the petition will proceed to be determined on its merits with oral evidence if necessary.
Court Disposition
notice of motion to strike out petition dismissed
Orders
- The notice of motion dated 12/6/2009 is dismissed.
- Costs shall abide the outcome of the petition.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
PETITION NO. 17 OF 2013
(Formerly Nairobi HC Petition No. 383 of 2008)
MOSES MOKOIT.........................................................APPLICANT
VERSUS
THE DEFENCE COUNCIL............................1ST RESPONDENT
ATTORNEY GENERAL................................2ND RESPONDENT
R U L I N G
1. The notice of motion dated 12/6/2009 seeks to strike out the petition herein. The same is supported by the affidavit of Brigadier Francis Maina Murgor sworn on 25/2/2009. The substance of the said motion is the attached affidavit, annexture FMMI by the petitioner disowning this petition.
2. The petitioner on the other hand vide his replying affidavit dated 5/3/2018 denied the same. I have equally perused the grounds of opposition dated 1/03/2018.
3. Without delving into the details of the annextures and specifically whether the petitioner recanted his affidavit and the entire petition, I find that the issue is so weighty that the same cannot be simply decided by way of affidavits.
4. The proper recourse is to have this petition determined fully by way of oral evidence. Should one of the issues raised in recanting of the petition then evidence should be led to that effect.
5. It is premature in my view to have the petition simply struck out based on some contested facts especially based on oath. Striking out is of course one of the measures provided where the suit is hopeless and on the face of it unmeritorious.
6. The notice of motion is therefore dismissed. The costs shall abide the outcome of the petition.
Delivered, signed and dated at Kitlae this 20th day of December, 2018.
_________________
H.K. CHEMITEI
JUDGE
20/12/2018
In the presence of:
Mr. Kakoi for State
Abari for the Respondent
Court Assistant – Kirong
Ruling read in open court.