[2025] KECPT 340 (KLR)

Opanga v Chairman Eldo Duka Travellers Sacco & 2 others (Tribunal Case 393 of 2018) [2025] KECPT 340 (KLR) (26 June 2025) (Ruling)

Neutral citation: [2025] KECPT 340 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 393 of 2018

Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

June 26, 2025

Between

Fredrick Osiemo Opanga

Applicant

and

The Chairman Eldo Duka Travellers Sacco

1st Respondent

The Secretary Eldo Duka Travellers Sacco

2nd Respondent

Eldo duka Travellers Saco

3rd Respondent

Ruling

1. This ruling dispenses with the Respondent’s Notice of Motion Application dated 13th September 2024 supported by an Affidavit which this court notes that it was sworn by the Applicant’s advocate on record, one Rauto Manuella. The application is brought under Sections 1A, 1B & 3A of the Civil Procedure Act, Cap 21, Order 21, Order 12 Rule 7, Order 17 Rule 2(2), Order 45 Rule 1and Order 51 rule 1 of the Civil Procedure Rules, 2010 and any other enabling Provisions of the Law. The application seeks the following orders:1. Spent2. Spent3. Spent4. Spent5. That cost of this suit be provided for.

2. This court will dwell with the issue of the Supporting Affidavit first.

3. We note that the supporting affidavit to the application dated 13th September 2024 is sworn by the Applicant’s advocate on record, one Rauto Manuela. The advocate is attesting to issues of facts relating to the application herein.

4. Order 19 Rule 3 (1) of the Civil Procedure Rules, 2010 provides that:“Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove: Provided that in interlocutory proceedings, or by leave of the court, an affidavit may contain statements of information and belief showing the sources and grounds thereof.”

5. Accordingly, in Salama Beach Ltd V Mario Rossi, Ca. No. 10 of 2015, the court held as follows“…………….. Ordinarily counsel is obliged to refrain from swearing affidavits on contentious issues, particularly where he may have to be subjected to cross examination (See Pattni v. Ali & 2 Others, CA. No. 354 of 2004 (UR 183/04). Rule 9 of the Advocates (Practice) Rules however permits an advocate to swear an affidavit on formal or non-contentious matters.”

6. In this case, the advocate is attesting to contentious issues, that his client, and not himself is required to prove. This is not a matter that the advocate will be called to testify and be cross examined. The client is. The affidavit, is therefore, clearly defective.

7. However, court does indeed have power to cure defects in an affidavit. Order 19 Rule 7 of the Civil Procedure Rules, 2010. Irregularity in form of AffidavitThe court may receive any affidavit sworn for the purpose of being used in any suit notwithstanding any defect by mis-description of the parties or otherwise in the title or other irregularity in the form thereof or on any technicality.Further in the case of East African Court of Appeal Case of Premchand Raichand & Another Ltd Vs Quarry Services & Others [1969] E.A. 514 the court was also considering several defects and omissions, it stated thus:“It has repeatedly been said by this court that affidavits based on information must disclose the sources of information…This is not merely a matter of form but goes to the essential value of the affidavit…But since the source of the information may have been unreliable, the affidavit can have no evidential value…The defects in the applicants affidavits have nothing to do with the misdescription of parties, which I must hold to be parties in the suit not the deponents...The irregularities herein are not restricted to the form but go to the evidential value of the affidavits themselves…”

8. This Tribunal notes that the law is lenient in cases where there are defects of form in the affidavit. Therefore, the question before us is whether the defects in this case are of form or of substance? Defects of substance go to the root of the affidavit and affect the evidential value. We are inclined to believe that in a case as this one where the person attesting to the issues of facts is not the Applicant, it goes to the root of the affidavit. This court cannot tell whether the evidence in the affidavit belongs to the Applicant or to his advocate on record. We believe that this affects the whole substance of the affidavit and that the same is fatally defective.

9. In the case of Mohammed Haji Hussein & 6 others v Mandera Water and Sewerage Company Ltd & 2 others; County Commissioner, Mandera County & 2 others (Interested Parties) [2021] eKLR, the court in holding that issues raised regarding affidavits are not mere technicalities that can be cured by reference to Article 159 of the Constitution, referred itself to the Supreme Court decision in the case of Patricia Cherotich Sawe v Independent Electoral & Boundaries Commission (IEBC) & 4 others [2015] eKLR in a unanimous decision that stated that:“Although the Appellant invokes the principle of prevalence of substance over form, this Court did single in Law Society of Kenya v The Centre for Human Rights and Democracy & 12 others, Petition 14 of 2013 that "Article 159(2) (d) of the Constitution is not a panacea for all procedural shortfalls" Not all procedural deficiencies can be remedies by Article 159. .."

10. Further in East African Court of Appeal Case of Premchand Raichand & Another Ltd Vs Quarry Services & Others[1969] E.A. 514 where the court was also considering several defects and omissions, it stated thus:

11. “It has repeatedly been said by this court that affidavits based on information must disclose the sources of information…This is not merely a matter of form but goes to the essential value of the affidavit…But since the source of the information may have been unreliable, the affidavit can have no evidential value…The defects in the applicants affidavits have nothing to do with the misdescription of parties, which I must hold to be parties in the suit not the deponents...The irregularities herein are not restricted to the form but go to the evidential value of the affidavits themselves…”

12. The defects presented in the supporting affidavit accompanying the notice of motion in question go to the evidential value of the affidavit itself. The same is hereby stuck out.

13. The question that arises then is whether the notice of motion application dated 13th September 2024, and which is the subject of the ruling herein can stand without the supporting affidavit. In the case of Maureen Nyambura Ngigi Warui v Board of Directors, Kenya Power & Lighting Company Limited & 2 others [2020] eKLR , where the court struck out a supporting affidavit for being substantially defective, the court held that“For these reasons, I strike out both the motion and the supporting affidavit for being bad in law as the motion, without the affidavit, cannot stand the test of evidentiary proof as required by law.”

14. The Applicant in his application refers to the defective affidavit for grounds of the application. Therefore, by virtue of the affidavit being struck out, we find that the Application will be a hollow shell without the affidavit.

15. Flowing from above, we hereby strike out the affidavit in support of the application dated September 13, 2024, as well as the Notice of Motion Application dated September 13, 2024, with costs to the Respondent.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF JUNE, 2025. HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 26. 6.2025HON. BEATRICE SAWE - MEMBER SIGNED 26. 6.2025HON. FRIDAH LOTUIYA - MEMBER SIGNED 26. 6.2025HON. PHILIP GICHUKI - MEMBER SIGNED 26. 6.2025HON. MICHAEL CHESIKAW - MEMBER SIGNED 26. 6.2025HON. P. AOL - MEMBER SIGNED 26. 6.2025Tribunal Clerk GechikoNo appearance by partiesRuling delivered in absence of partiesCase stands dismissed.