[2013] KEHC 2384 (KLR)
The court found that the affidavit in support of the notice of motion was purportedly sworn by the petitioner, against whom the orders were sought, which rendered the affidavit incompetent. Since an affidavit is evidence and cannot be amended, it must be struck out. Without a valid affidavit, the notice of motion...
Source-derived case information.
- Citation
- [2013] KEHC 2384 (KLR)
- Parties
- Petitioner: Rahab Wangari Gachiengo; Objector: Naomi Wambui Gachiengo
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 306 of 2001
- Procedural Posture
- Succession Cause / Ruling on Preliminary Objection to Notice of Motion
- Outcome
- preliminary objection upheld; notice of motion struck out; costs to petitioner/respondent
- Judges
- RPV Wendoh
- Legal Topics
- Affidavit Incompetence, Preliminary Objection, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rahab Wangari Gachiengo
Petitioner
Naomi Wambui Gachiengo
Objector
Procedural Posture
Succession Cause / Ruling on Preliminary Objection to Notice of Motion
Legal Issues
- 1 Whether the affidavit in support of the notice of motion is competent evidence.
- 2 Whether the notice of motion is sustainable without a valid supporting affidavit.
- 3 Whether the preliminary objection should be upheld.
Ratio Decidendi
The court found that the affidavit in support of the notice of motion was purportedly sworn by the petitioner, against whom the orders were sought, which rendered the affidavit incompetent. Since an affidavit is evidence and cannot be amended, it must be struck out. Without a valid affidavit, the notice of motion lacked evidentiary support and was therefore also incompetent. The preliminary objection was upheld, and the notice of motion was struck out with costs awarded to the petitioner/respondent.
Court Disposition
preliminary objection upheld; notice of motion struck out; costs to petitioner/respondent
Orders
- The affidavit in support of the notice of motion is struck out.
- The notice of motion dated 30/5/2013 is struck out as incompetent.
Full Case Text
Judgment text and source record
18 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
SUCCESSION CAUSE NO. 306 OF 2001
IN THE MATTER OF THE ESTATE OF HARUN GACHIENGO KAMAU (DECEASED)
RAHAB WANGARI GACHIENGO………………..PETITIONER
VERSUS
NAOMI WAMBUI GACHIENGO……………………OBJECTOR
RULING
This cause relates to the estate of the deceased, Harun Gachiengo Kamau. The petitioner is named as Rahab Wangari Gachiengo while Naomi Wambui Gachiengo is the objector.
On 30/6/2013, Onkoba & Co. Advocates filed a notice of motion dated 30/5/2013 on behalf of the objector. They served the notice of motion on the firm of Nancy Njoroge who was on record for the petitioner. The notice of motion was slated for hearing today, the 25/6/2013. Wachira Mbuthia Advocate filed a notice of preliminary objection to the notice of motion on behalf of the petitioner on the grounds that the notice of motion is an abuse of the court process, incompetent and unsustainable for the reason that it is improperly supported by an affidavit purportedly sworn by the petitioner and his client has not given Mr. Onkoba any such instructions to file the application for him.
I have seen the affidavit in support of the application. It is purportedly sworn and signed by the petitioner, Rahab Wangari Gachiengo. The orders sought in the application are directed against the petitioner and therefore it does not make any sense that the petitioner would have sworn an affidavit seeking orders against herself. An affidavit being evidence cannot be amended and must be struck off. I believe that was a mistake made by the counsel, Mr. Onkoba. It is Mr. Onkoba who took the hearing date and was aware of the preliminary objection, but he did not attend court for the hearing of his application or the preliminary objection. The net result is that, I do agree with Mr. Wachira that since the affidavit was not sworn by the petitioner, it is incompetent and must be struck off. Once the affidavit is struck off the Notice of Motion will have no evidence to support it, it is equally incompetent and is hereby struck out. I uphold the preliminary objection and costs will go to the petitioner/respondent.
DATED and DELIVERED this 27th day of June, 2013.
R.P.V. WENDOH
JUDGE
PRESENT:
N/A for the petitioner
Mr. Ombati for the respondent
Kennedy – Court Clerk