[2009] KEHC 906 (KLR)
The court found that the applicant's affidavit was not properly sworn before a Commissioner of Oaths as required by law, rendering it incompetent and irregular. The authenticity of the affidavit was also questionable due to inconsistencies in the form of signature and thumbprint. As the application was not supported...
Source-derived case information.
- Citation
- [2009] KEHC 906 (KLR)
- Parties
- Applicant: Rakel Muruga Kangethe; Respondent: John Kibeti Ngugi
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 290 of 2007
- Procedural Posture
- Succession Cause / Ruling on Preliminary Objection
- Outcome
- Application struck out for want of a valid supporting affidavit. Costs awarded to respondent.
- Legal Topics
- Affidavit Irregularity, Commissioner of Oaths, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rakel Muruga Kangethe
Applicant
John Kibeti Ngugi
Respondent
Procedural Posture
Succession Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the affidavit in support of the application was properly sworn as required by law.
- 2 Whether the application can stand without a valid supporting affidavit.
Ratio Decidendi
The court found that the applicant's affidavit was not properly sworn before a Commissioner of Oaths as required by law, rendering it incompetent and irregular. The authenticity of the affidavit was also questionable due to inconsistencies in the form of signature and thumbprint. As the application was not supported by a valid affidavit, it was also struck out. The applicant was ordered to pay costs to the respondent.
Court Disposition
Application struck out for want of a valid supporting affidavit. Costs awarded to respondent.
Orders
- The affidavit purportedly sworn on 18.08.09 is struck out.
- The application dated 18.08.09 is struck out for lack of a valid supporting affidavit.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Succession Cause 290 of 2007
IN THE MATTER OF: THE ESTATE OF NYAMBURA KINYANJUI KINOO
( DECEASED)
RAKEL MURUGA KANGETHE……………………………………..………….APPLICANT
VERSUS
JOHN KIBETI NGUGI ………………………………..……………………..RESPONDENT
R U L I N G
I have considered the application and in particular the Preliminary objection raised. The Applicant in her affidavit of 18. 08. 09 has admitted that she signed the affidavit in Nairobi in the presence of the advocates. This confirms that she did not appear before D.C. Muya Commissioner of Oaths in Mombasa.
I therefore find that the affidavit is incompetent and irregular as it was not sworn as required. The authenticity of the affidavit has also come into question as the affidavit was purportedly signed by a form of signature while the Replying Affidavit sworn before D.G. Muya was thumb printed. While there is no evidence of forgery yet the issue raises some questions.
I do hereby strike out the affidavit purportedly sworn on 18. 08. 09. As the application dated 18. 08. 09 is not supported by any affidavit it is also struck out.
The applicant shall pay the costs to the Respondent.
Dated at Mombasa this 21st day of October 2009.
M.K. IBRAHIM
J U D G E