[2024] KEHC 8539 (KLR)
The court found that the application was fatally defective because it failed to disclose the grounds upon which it was premised and did not indicate the person on whose affidavit evidence it was based. Furthermore, the supporting affidavit was sworn after the application was drawn and signed, rendering it a 'future...
Source-derived case information.
- Citation
- [2024] KEHC 8539 (KLR)
- Parties
- Appellant: Wilfred Omondi Otieno; Respondent: Stephen Ochieng Otieno
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E125 of 2024
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application
- Outcome
- application struck out
- Judges
- MS Shariff
- Legal Topics
- Notice of Motion Requirements, Affidavit Evidence, Procedural Defects
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilfred Omondi Otieno
Appellant
Stephen Ochieng Otieno
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the notice of motion complies with Order 51 Rule 4 of the Civil Procedure Rules.
- 2 Whether the supporting affidavit is valid and properly before the court.
Ratio Decidendi
The court found that the application was fatally defective because it failed to disclose the grounds upon which it was premised and did not indicate the person on whose affidavit evidence it was based. Furthermore, the supporting affidavit was sworn after the application was drawn and signed, rendering it a 'future affidavit' and non-existent at the material time. These procedural defects contravened Order 51 Rule 4 of the Civil Procedure Rules, making the application incurably defective. Consequently, the court struck out the application with no orders as to costs.
Court Disposition
application struck out
Orders
- The application is struck out for being incurably and fatally defective.
- No orders as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
Otieno v Otieno (Civil Appeal E125 of 2024) [2024] KEHC 8539 (KLR) (15 July 2024) (Ruling)
Neutral citation: [2024] KEHC 8539 (KLR)
Republic of Kenya
In the High Court at Kisumu
Civil Appeal E125 of 2024
MS Shariff, J
July 15, 2024
Between
Wilfred Omondi Otieno
Appellant
and
Stephen Ochieng Otieno
Respondent
Ruling
1. I have considered the Appellant’s notice of motion dated 19th June, 2024, the certificate of urgency issued by Valentine Ataka advocate and the supporting affidavit sworn by Millian Aligula on 21st June 2024 and I note that the application offends the provisions of Order 51 Rule 4 which provides that:“Every notice of motion shall state in general terms the grounds of the application and where any motion is grounded on evidence by affidavit, a copy of any affidavit intended to be used shall be served.”
2. The application herein has not disclosed the grounds upon which it is premised nor does it indicate the person on whose affidavit evidence, it is based on. Moreover the affidavit attached to the application, sworn by Millian Aligula is a future affidavit as it was sworn on 21st June 2024 and it was non existence as at the time of drawing and signing of this application.
3. In light of the reasons aforestated I find that the application herein is incurably and fatally defective where I do hereby strike it out with no orders as to costs.
4. The above orders apply mutatis mutandis to Kisumu HCCA No. E125/24. It is hereby so ordered.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 15THDAY OF JULY, 2024. M. S. SHARIFFJUDGE