[2006] KEHC 3282 (KLR)
The court found that paragraphs 13, 15, 16, 17, 18, 21 and 22 of the supporting affidavit did not comply with Order XVIII Rule 3 (1) because they were speculative, based on assumptions, and failed to disclose the sources of information. The remaining paragraphs were insufficient to support the Chamber Summons...
Source-derived case information.
- Citation
- [2006] KEHC 3282 (KLR)
- Parties
- Plaintiff: Muimara Properties Limited; Defendant: Elpas Indika Amakobe; Defendant: Francis Mburu; Defendant: Meshack Owuya Abuka; Defendant: Cecilia Kilonzo Tumbo; Defendant: Peter Kitheka Ikai; Defendant: Mary Agusta Karimi; Defendant: Jane Nanjira Ibrahim
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 1011 of 2005
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- application dismissed with costs to the defendant/respondent
- Judges
- ARM Visram
- Legal Topics
- Affidavit Requirements, Preliminary Objection, Striking Out Affidavit, Order Xviii Rule 3, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muimara Properties Limited
Plaintiff
Elpas Indika Amakobe
Defendant
Francis Mburu
Defendant
Meshack Owuya Abuka
Defendant
Cecilia Kilonzo Tumbo
Defendant
Peter Kitheka Ikai
Defendant
Mary Agusta Karimi
Defendant
Jane Nanjira Ibrahim
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the supporting affidavit complies with Order XVIII Rule 3 (1) regarding disclosure of sources of information.
- 2 Whether paragraphs 13, 15, 16, 17, 18, 21 and 22 of the affidavit should be struck out for non-compliance.
- 3 Whether the remaining affidavit forms a sufficient basis to support the Chamber Summons application.
Ratio Decidendi
The court found that paragraphs 13, 15, 16, 17, 18, 21 and 22 of the supporting affidavit did not comply with Order XVIII Rule 3 (1) because they were speculative, based on assumptions, and failed to disclose the sources of information. The remaining paragraphs were insufficient to support the Chamber Summons application. Consequently, the non-compliant paragraphs were struck out, and the application was dismissed with costs to the defendant/respondent.
Court Disposition
application dismissed with costs to the defendant/respondent
Orders
- Paragraphs 13, 15, 16, 17, 18, 21 and 22 of the supporting affidavit are struck out.
- The Chamber Summons application is dismissed with costs to the defendant/respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
Civil Suit 1011 of 2005
MUIMARA PROPERTIES LIMITED ………………………….......….……. PLAINTIFF
VERSUS
1. ELPAS INDIKA AMAKOBE
2. FRANCIS MBURU
3. MESHACK OWUYA ABUKA
4. CECILIA KILONZO TUMBO
5. PETER KITHEKA IKAI
6. MARY AGUSTA KARIMI
7. JANE NANJIRA IBRAHIM …………………….........…………… DEFENDANTS
RULING
This Preliminary Objection is made under Order XVIII Rule 3 (1) where the defendant seeks to have the supporting affidavit, sworn by Francis Njuguna Karuiru and dated 11th August, 2005, struck out on grounds that it is defective.
Counsel for the defendant submitted that paragraphs 5, 6, 7, 13, 15, 16, 17, 18, 21 and 22 of the supporting affidavit do not disclose the source of the information relied upon and on this basis, the whole affidavit should be struck out. Counsel for the Plaintiff responded that the affidavit clearly states the grounds on which the information is relied upon.
Order XVIII Rule 3 (1) states that, “Affidavits shall be confined to such facts as the depondent is able of his own knowledge to prove; provided that interlocutory proceedings or by leave of this court, an affidavit may contain statements of information and belief showing the sources and grounds thereof”.
After considering the paragraphs in contention, I am of the view that paragraph 5, 6 and 7 are valid. The facts in these paragraphs have been averred to by the Director and Company Secretary of the Plaintiff, who has knowledge of such facts.
Paragraphs 13, 15, 16, 17, 18, 21 and 22 are speculative and based on assumptions. Relying on Halsbury’s Laws of England, 3rd Edition paragraph 845, my brother, Judge Msagha in the case of Simon Isaac Ngui vs Overseas Courier Services (K) Limited held that “Affidavits filed in the High Court must deal only with facts which the witness can prove of his own knowledge except that, in interlocutory proceeding or with leave, statements as to a deponent’s information or belief are admitted, provided the sources and grounds thereof are stated …”.
Where an affidavit is made on information, it should not be acted upon by any court unless the sources of the information are specified. (Standard Goods vs Harakehand Nathu & Company (1950) 17 EACA 99). Similarly, in the case of Assanand and Sons vs E A Records Limited (1959) EA 360, the Court of Appeal held that the depondent must distinguish between matters deponed to from his own knowledge and those from information given to him.
It is thus clear that paragraph 13, 15, 16, 17, 18, 21 and 22 of the affidavit do not conform to the requirements of Order XVIII Rule 3 (1) and are hereby struck out. Without these paragraphs, the affidavit is skeleton and does not form sufficient basis to support the Chamber Summons application before this Court.
Accordingly, the same is dismissed with costs to the Defendant/Respondent.
Dated and delivered at Nairobi this 13th day of February, 2006.
ALNASHIR VISRAM
JUDGE