[2005] KEHC 2468 (KLR)
The court held that an affidavit sworn by counsel, who is the agent of the party, is proper and admissible in interlocutory proceedings under Order 18 Rule 3 of the Civil Procedure Rules, provided the content is factual and non-controversial. The court distinguished the present case from Microsoft Corporation vs...
Source-derived case information.
- Citation
- [2005] KEHC 2468 (KLR)
- Parties
- Appellant: Mwangi Kamwana; Respondent: Bernard Gatu Kanja
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 128 of 2003
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs to the applicant
- Judges
- ARM Visram
- Legal Topics
- Affidavit Requirements, Preliminary Objection, Order 18 Rule 3, Order 16 Rule 5, Advocate Authority
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwangi Kamwana
Appellant
Bernard Gatu Kanja
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection
Legal Issues
- 1 Whether an affidavit sworn by counsel without expressly stating authority is fatally defective.
- 2 Whether Order 18 Rule 3 of the Civil Procedure Rules permits advocates to swear affidavits in interlocutory proceedings.
- 3 Whether technical defects in affidavits should result in striking out applications.
Ratio Decidendi
The court held that an affidavit sworn by counsel, who is the agent of the party, is proper and admissible in interlocutory proceedings under Order 18 Rule 3 of the Civil Procedure Rules, provided the content is factual and non-controversial. The court distinguished the present case from Microsoft Corporation vs Mitsumi Computer Garage Ltd, noting that the issue there concerned affidavits by employees of corporations, not advocates acting as agents. The court emphasized that technical defects in affidavits should not be used to defeat substantive justice and that the affidavit in question was not offensive. Consequently, the preliminary objection was dismissed with costs to the applicant.
Court Disposition
preliminary objection dismissed with costs to the applicant
Orders
- The preliminary objection is dismissed with costs to the applicant.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Appeal 128 of 2003
MWANGI KAMWANA …………………...……………… APPELLANT
VERSUS
BERNARD GATU KANJA ………………..……………. RESPONDENT
RULING
This is an application, brought under Order 16 Rule 5 of the Civil Procedure Rules, for an order dismissing the Appellant’s Memorandum of Appeal for want of prosecution.
However, before the hearing of the application the Respondent’s Counsel, Ms L Wahome, raised a Preliminary Objection, arguing that the affidavit in support of the application, having been sworn by Counsel, without deponing that he had the authority to swear the same, was fatally defective. She cited the case ofMicrosoft Corporation vs Mitsumi Computer Garage Ltd(Milimani HCCC 810 of 2001). She further argued that Order 18 Rule 3 of the Civil Procedure Rules required that the litigant himself, not his advocate, swear the affidavit, and cited the cases of Kisya Investments Ltd vs Kenya Finance Corporation Ltd (Nairobi HCCC No 3504 of 1993); and Simon Isaac Ngui vs Overseas Courier Services Ltd(Nairobi HCCC 1632 of 1997).
Having perused the Affidavit in support, sworn by Muriuki Njagagua, Advocate, I am satisfied that the deponent has identified himself as the advocate, hence the “agent” of the Respondent, and has, therefore, the authority to swear the affidavit. I do not think the case of Microsoft (supra) has application to the facts of this case, as here it is not an “employee” of a “corporation” swearing the affidavit. In Microsoft, the issue related to Order 3 Rule 2 which requires that an affidavit by a corporation can only be made by an officer thereof who is duly authorized by the corporation to do so.
Here, in this case, the affidavit in question can be received under Order 18 Rule 3 which allows the Court, in interlocutory proceedings, to admit Affidavits which contain statements of information and belief provided the sources and grounds thereof are indicated.
The content of the Affidavit here is factual and non-controversial, and is fully within the capacity of Counsel to depone. According, I do not find it offensive and will allow the same as a proper affidavit in support of the application. It is noteworthy that even in the Microsoft case, although the Court found the affidavit defective it did not strike out the suit, simply ordered that the Affidavit be replaced. It would be highly unjust to strike out matters on technicalities.
The Preliminary Objection is dismissed with costs to the Applicant.
Dated and delivered at Nairobi this 14th day of June, 2005.
ALNASHIR VISRAM
JUDGE