[2010] KEHC 3055 (KLR)
The court found that the supporting affidavit sworn by Felix Otieno was defective because, despite the deponent's assertion that all facts were within his knowledge, paragraphs 7 and 8 revealed that some information was sourced from the applicant’s advocate. This contradiction demonstrated non-compliance with Order...
Source-derived case information.
- Citation
- [2010] KEHC 3055 (KLR)
- Parties
- Appellant: Peter Ngure Kimingi; Appellant: Anne Wangari Kimingi; Respondent: Investment & Mortgages Bank Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 84 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection
- Outcome
- Affidavit struck out for non-compliance with procedural rules.
- Judges
- GG Okwengu
- Legal Topics
- Affidavit Defects, Preliminary Objection, Order Xviii Rule 3, Supporting Affidavit Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Ngure Kimingi
Appellant
Anne Wangari Kimingi
Appellant
Investment & Mortgages Bank Ltd
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the supporting affidavit contravenes Order XVIII Rule 3 of the Civil Procedure Rules.
- 2 Whether failure to disclose sources of information renders the affidavit defective.
Ratio Decidendi
The court found that the supporting affidavit sworn by Felix Otieno was defective because, despite the deponent's assertion that all facts were within his knowledge, paragraphs 7 and 8 revealed that some information was sourced from the applicant’s advocate. This contradiction demonstrated non-compliance with Order XVIII Rule 3 of the Civil Procedure Rules, which requires disclosure of sources of information. The defect was substantive and not merely technical, warranting the striking out of the affidavit.
Court Disposition
Affidavit struck out for non-compliance with procedural rules.
Orders
- The affidavit sworn by Felix Otieno on 12th October, 2009 is struck out.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
CIVIL APPEAL 84 OF 2009
PETER NGURE KIMINGI……………………..…1ST APPELLANT
ANNE WANGARI KIMINGI………………..……2ND APPELLANT
VERSUS
INVESTMENT & MORGAGES BANK LTD……...RESPONDENT
R U L I N G
1. A Preliminary objection has been raised to the notice of motion dated12th October, 2009on the grounds that the supporting affidavit sworn by Felix Otieno on12th October, 2009, is defective as it contravenes Order XVIII Rule 3 of the Civil Procedure Rules. The deponent of the affidavit who is a legal officer of the applicant, I & M Bank Ltd, has deponed in paragraph 11 that all the facts that he has deponed to in the affidavit are within his knowledge and are true.
2. Counsel for the respondent maintains that the affidavit is defective because the deponent has not disclosed sources of his information. However, in paragraph 7 and 8 of the affidavit, the deponent has revealed the source of his information as the applicant’s advocate.
3. Thus, although paragraph 11 of the affidavit states that all the facts deponed to are facts within the deponent’s knowledge, that is not actually the position. It is evident that the affidavit is defective. Accordingly the affidavit sworn by Felix Otieno is struck out.
Dated and delivered this 19th day of February, 2010
H. M. OKWENGU
JUDGE
In the presence of: -
Advocate for the appellant absent
Githinji H/B for Ogunde for the respondent/applicant
Eric - Court clerk