[2018] KEELC 3657 (KLR)
The court held that the objections raised by the plaintiffs regarding the affidavit and the citation of procedural rules were not sufficient to defeat the application. The court found that procedural technicalities, such as citing the wrong rule or having an affidavit sworn by counsel rather than the party, do not...
Source-derived case information.
- Citation
- [2018] KEELC 3657 (KLR)
- Parties
- Plaintiff: Paul Mwangi Njoroge; Plaintiff: Phylis W. Njoroge; Plaintiff: Susan Nyambura Njoroge; Defendant: Wafula Sikuta
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 170 of 2016
- Procedural Posture
- Land Case / Ruling on Application to Amend Defence and Include Counterclaim
- Outcome
- application allowed
- Judges
- FM Njoroge
- Legal Topics
- Amendment of Pleadings, Counterclaim, Affidavit Requirements, Technicalities in Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Mwangi Njoroge
Plaintiff
Phylis W. Njoroge
Plaintiff
Susan Nyambura Njoroge
Plaintiff
Wafula Sikuta
Defendant
Procedural Posture
Land Case / Ruling on Application to Amend Defence and Include Counterclaim
Legal Issues
- 1 Whether the defendant should be granted leave to amend the defence and include a counterclaim.
- 2 Whether an affidavit in support of the application sworn by counsel instead of the defendant is valid.
- 3 Whether citing the wrong procedural rule is fatal to the application.
Ratio Decidendi
The court held that the objections raised by the plaintiffs regarding the affidavit and the citation of procedural rules were not sufficient to defeat the application. The court found that procedural technicalities, such as citing the wrong rule or having an affidavit sworn by counsel rather than the party, do not override substantive justice, especially where the facts deponed are within the advocate's knowledge or based on information and belief in interlocutory proceedings. The court exercised its discretion to admit the affidavit despite its anomalies and found no substantive prejudice to the plaintiffs. Consequently, the application to amend the defence and include a counterclaim was...
Court Disposition
application allowed
Orders
- Leave is granted to the defendant to amend the defence and include a counterclaim as per the draft annexed to the application.
- The amended defence and counterclaim shall be deemed as properly filed and served upon payment of requisite fees.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 170 OF 2016
PAUL MWANGI NJOROGE.............................................1ST PLAINTIFF
PHYLIS W. NJOROGE...................................................2ND PLAINTIFF
SUSAN NYAMBURA NJOROGE..................................3RD PLAINTIFF
VERSUS
WAFULA SIKUTA..............................................................DEFENDANT
R U L I N G
1. The application dated 4/1/2017 seeks leave to amend the defence as per the terms of the draft annexed thereto and that the draft be deemed as properly filed and served upon payment of the requisite fees. The grounds upon which the application is made are that the proposed amendment will enable the efficient determination of the facts in issue and the prejudice will be occasioned to the plaintiffs.
2. The application is opposed. Grounds of opposition were filed on 15/12/2017. It is stated in those grounds and in the submission that the deponent in the affidavit filed to support the application is a person other than the defendant. It has been submitted that under Order 19 (3) (3) affidavits shall be confined to facts which the deponent can of his own knowledge, prove and with the defendant introducing a counterclaim, the counsel cannot verify that and thus, the application should be struck out.
3. Objection is also raised to the application on the ground that the application is brought under Order 8 Rule 1and 3andOrder 51. It is urged that Order 8 Rule 1 governs application made before pleadings are closed. The counsel for the plaintiff has also faulted counsel for the defendant for the delay in bringing the application 10 months after the defence was filed, which he terms as an unreasonable delay. He urges that a counterclaim will be subject to the Rules of Limitation.
4. In response to these arguments counsel for the defendant cited Order 19of theCivil Procedure Rules and urged that an advocate is allowed to swear an affidavit on behalf of his client where the advocate has the facts. He also urged that limitational issues should be heard on the merits and not in this application. Whereas I agree with him on the last point, I must examine the other objections of the plaintiffs to the defendants’ application.
5. In respect of the objection relating to citing of the wrong rule this court will refer to Article 159of theConstitutionand Order 51 Rule 10 (1)and(2)of theCivil Procedure Rules. The latter provision provides that failure to cite the proper Order, Rule or Statutory provision under which an application is sought shall not afford a defence to the application. In my view, that is a mere technicality. I therefore dismiss that ground.
6. As to the objection that counsel has sworn the affidavit instead of the defendant, I observe that it is trite that a deponent shall only depone to such facts in an affidavit as he is able to prove. It has not been denied that counsel swore the affidavit dated 4/12/2017 in support of the application. Should he have done that? The first paragraph acknowledges that consultations took place between him and his client and a decision was reached to amend the defence and include a counterclaim. It is clear that there was an agreement, and this we must believe to be the case otherwise we may have to doubt even counsel’s authority to handle the matter on behalf of the defendant.
7. Has counsel sworn to matters that he cannot prove? The contents of paragraphs 2, 3 and 5 of the affidavit are the only paragraphs which may require some proof and I find that by dint of his handling of the matter on behalf of the client, an advocate may in any case, swear to such matters as they relate purely to what can be observed from the court record or what he has learned from his client. The only great flaw with the said affidavit is that it appears to have been drafted with the defendant in mind as the swearer thereof and when the deponent changed, the contents of paragraphs 2 and 3 were not amended to suit the identity of the new deponent. This is a wakeup call to the deponents to be careful of what they execute on oath. Nevertheless, this court has discretion to admit any affidavit despite any anomalies they may have under Order 19 Rule 7.
8. In addition affidavits based on statements of information and belief are allowed in interlocutory proceedings under Order 19 Rule 3 (1). It is therefore not a fatal flaw for the application to be supported by the counsel’s affidavit. I therefore dismiss that objection too. Having said that, I find no good ground to deny the applicant the prayers sought. The application dated 4/12/2017 is therefore allowed in terms of prayers No. 1 and 2. Costs shall be in the cause.
Dated, signed and delivered at Kitale on this 21st day of March, 2018.
MWANGI NJOROGE
JUDGE
21/3/2018
Coram:
Before -Mwangi Njoroge, Judge
Court Assistant - Picoty
Ms. Cheloti holding brief for Chepkwony for the Applicant
N/A for the Respondents
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
21/3/2018