[2006] KEHC 2479 (KLR)
The court held that the preliminary objections raised by the interested party were without merit. The omission of the advocate's name and address on the verifying affidavit was a mere irregularity in form and did not render the affidavit a nullity or incurably defective, especially where it was clear that the...
Source-derived case information.
- Citation
- [2006] KEHC 2479 (KLR)
- Parties
- Applicant: Republic; Respondent: District Land Disputes Tribunal Kipkaren; Interested Party: Sarah K. Soria; Ex Parte Applicant: Dorcas J. Kisoria
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 96 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objections in Judicial Review Application
- Outcome
- preliminary objections dismissed with costs to the ex-parte applicant
- Judges
- AI Tullu
- Legal Topics
- Judicial Review, Preliminary Objection, Affidavit Irregularities, Advocates Act Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
District Land Disputes Tribunal Kipkaren
Respondent
Sarah K. Soria
Interested Party
Dorcas J. Kisoria
Ex Parte Applicant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objections in Judicial Review Application
Legal Issues
- 1 Whether the verifying affidavit is incurably defective for failure to endorse the advocate's name and address as required by section 35(1) of the Advocates Act.
- 2 Whether amendments to the numbering of affidavit paragraphs render it incompetent.
- 3 Whether the jurat appearing on a different page invalidates the affidavit.
Ratio Decidendi
The court held that the preliminary objections raised by the interested party were without merit. The omission of the advocate's name and address on the verifying affidavit was a mere irregularity in form and did not render the affidavit a nullity or incurably defective, especially where it was clear that the affidavit was drawn and filed by advocates. The amendments to the numbering of the affidavit paragraphs were not substantive and were necessitated by common sense, thus did not affect the validity of the affidavit. The objection regarding the jurat was also dismissed as the jurat was part of the affidavit and not on a separate page. Consequently, all preliminary objections were...
Court Disposition
preliminary objections dismissed with costs to the ex-parte applicant
Orders
- The preliminary objections raised by the interested party are dismissed.
- Costs awarded to the ex-parte applicant.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET
Misc Civ Appli 96 of 2003
REPUBLIC:.........................................................................................................................APPLICANT
VERSUS
DISTRICT LAND DISPUTES TRIBUNAL KIPKAREN:.......................................RESPONDENT
SARAH . K. SORIA:........................................................................................INTERESTED PARTY
DORCAS J. KISORIA:........................................................................................................EX-PARTE
R U L I N G
The notice of motion dated 17th April,2003 under the provisions of Order 53 of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act for a judicial review order of certiorari came for hearing before me when the counsel for the interested party raised the following preliminary objections in:-
1. That the Notice to the Registrar was defective for it bore two stamps on 11th and 12th March,2003.
2. The verifying Affidavit filed on 12th March,2003 is irregular, and incompetent since paragraph 11 and 12 have been amended.
3. That it is not indicated who drew the verifying Affidavit under section 35 of the Advocates Act.
4. That the jurat appears on a different page.
I disallowed the first preliminary objection as it did not raise a pure point of law. With regard to the issue of amendment of the affidavit, the amendments are in respect of the numbering of the paragraphs. They were amended in hand. I do hold that the objection is frivolous and unsustainable. The corrections are not strictly amendments that go to the substance and were necessitated by pure common sense that you cannot have two paragraphs numbered
10 or 11.
The interested party through counsel argued that the verifying Affidavit is incurably defective as it does not comply with the mandatory provisions of section 35 (1) of the Advocates Act. The person who drew or prepared or caused to be drawn and prepared the said verifying Affidavit did not endorse on the affidavit his name and address or the name or address of the firm of which he is a partner or employed.
Section 35 (1) of the Advocates Act reads as follows:-
“ 35 (1) Every person who draws or prepares or cause to be drawn or prepared, any document or instruments referred to in section 35 (1) shall at the same time endorse or cause to be endorsed thereon his name and address, or the name and address of the firm of which he is a partner and any person omitting so to do shall be guilty of an offence and liable to a fine not exceeding five thousand in case of an unqualified person or a fine not exceeding five hundred shillings in case of an advocate ..............”
Mr. Nandwa for the interested party relied on the case of HC.CC. No.1736 of 2001 – BARCLAYS BANK OF KENYA LIMIVED –V- SOLOMON OTIENO ORERO.
Mrs. Nyaundi for the Ex parte Applicant in opposition to the Application cited the decision in DUBAI BANK KENYA LTD –V- COME –CONS AFRICA LTD HC.CC.No.68 of 2003 (MILIMANI COMMERCIAL COURTS). In this decision, I held that the omission of the advocate’s name and address on the verifying Affidavit was a mere irregularity in form and the same did not render the verifying affidavit a nullity or incurably defective.
In the present case, the chamber summons was drawn and filed by Wena & Company acting for the Ex parte applicants. The verifying Affidavit was in support of the statutory statement also drawn by the said firm. I hold that it is clear and certain that the application was drawn and filed by advocates. The verifying Affidavit must have also been drawn by the said advocates.
Mr. Nandwa has not persuaded me to change my view of the law on this point and I therefore hold that the said preliminary objection must fail.
In respect of the jurat, I find that it is not on its own and on a separate page. Page 2 of the Affidavit contains paragraphs 11 and 12 and then the jurat. It is part and parcel of the Affidavit which has 2 pages. This objection also fails.
I therefore do hereby dismiss the preliminary objections raised with costs to the Ex parte Applicant.
DATED AND DELIVERED AT ELDORET ON THIS 18TH DAY OF MAY 2006
M. K. IBRAHIM
JUDGE
18TH May,2006
Coram - Ibrahim ‘J’
C/C - Chelanga.
Mr. Otieno holding brief for Mrs. Nyaundi for the Ex-parte Applicant.
No Appearance for the interested party.
Mr. Nandwa now present. Ruling delivered in their presence.