[2005] KEHC 2559 (KLR)
The court found that the affidavits in question substantially related to the court record or archives, matters which are within the personal knowledge of the advocate. The court held that there is no better deponent than an advocate on issues relating to court records, and that Order 18 rule 3 does not strictly...
Source-derived case information.
- Citation
- [2005] KEHC 2559 (KLR)
- Parties
- Applicant: Greenhills Investments Limited; Applicant: Market Masters Limited; Applicant: Sugar Candy Limited; Respondent: National Environment Management Authority; Respondent: Public Complaints Committee; Respondent: City Council of Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 169 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary_objection_dismissed
- Judges
- JW Nyamu
- Legal Topics
- Affidavit Evidence, Judicial Review Procedure, Advocate Ethics
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Greenhills Investments Limited
Applicant
Market Masters Limited
Applicant
Sugar Candy Limited
Applicant
National Environment Management Authority
Respondent
Public Complaints Committee
Respondent
City Council of Nairobi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether affidavits sworn by an advocate on behalf of the applicant are a nullity for failing to comply with Order 18 rule 3 of the Civil Procedure Rules.
- 2 Whether an advocate is prohibited from swearing affidavits on contentious matters under the Advocates Act rules.
Ratio Decidendi
The court found that the affidavits in question substantially related to the court record or archives, matters which are within the personal knowledge of the advocate. The court held that there is no better deponent than an advocate on issues relating to court records, and that Order 18 rule 3 does not strictly apply to judicial review proceedings. Even if it did, the objection could not be sustained because the affidavits did not address contentious matters but rather factual matters evident from the court record. The court further held that any contention regarding the state of the court record can be resolved by the court itself, and the risk of an advocate descending into the arena of...
Court Disposition
preliminary_objection_dismissed
Orders
- The objections to the affidavits are disallowed with costs to the applicant.
- The application is to be set down for hearing on merit.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI MISCELLANEOUS APPLICATION NO 169 OF 2004
IN THE MATTER OF AN APPLICATION BY GREENHILLS INVESTMENTS LIMITED, MARKET MASTERS LIMITED AND SUGAR CANDY LIMITED FOR ORDERS OF PROHIBITION, CERTIORARI AND MANDAMUS
IN THE MATTER OF AN APPLICATION BY GREENHILLS INVESTMENTS LIMITED, MARKET MASTERS LIMITED AND SUGAR CANDY LIMITED FOR ORDERS OF PROHIBITION, CERTIORARI AND MANDAMUS
AND
IN THE MATTER OF THE ENVIRONMENTAL MANAGEMENT AND COORDINATION ACT OF 1999
AND
IN THE MATTER OF THE LOCAL GOVERNMENT ACT, CAP 265 LAWS OF KENYA
REPUBLIC .............................................................................. APPLICANT
VERSUS
NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY ................................................................... 1ST RESPONDENT
PUBLIC COMPLAINTS COMMITTEE ..................... 2ND RESPONDENT
CITY COUNCIL OF NAIROBI .................................... 3RD RESPONDENT
EX PARTE
GREENHILLS INVESTMENTS LIMITED
MARKET MASTERS LIMITED
SUGAR CANDY LIMITED
RULING
The objection raised in this matter when the application dated 10th May 2004 came for hearing before me is that the two affidavits sworn by Mr Mwenesi, the learned counsel for the applicant are a nullity and ought to be struck out:
a) Because they do not comply with the provisions of Order 18 rule 3 which stipulates that affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove
b) Because they relate to contentious matters and an advocate ought not depone on contentious matters as this is specifically prohibited in the rules made under the Advocates Act
The court has considered the submissions of counsel. As regards the first objection a careful scrutiny of the affidavits indicate that the substance and content of the affidavits substantially relate to the court record/or archives. There can never be a better deponent than an advocate on issues relating to archives or court records. Such matters are within an advocates knowledge. I do not think O 18 does apply to Judicial review and even if it did the objection cannot be sustained for the two reasons given above.
Turning to the second objection I find nothing contentious with an advocate deponing on the state of the court record. Any contention can always be resolved by the court looking at the record and the possibility of an advocate descending into the arena of contest are remote. In the instant case reference is clearly made to the affidavit of Professor Pitt Situma sworn on 7th April 2005 which affidavit represents the factual base of the application.
In the result the objections are disallowed with costs to the applicant. Application to be set down for hearing on merit.
DATED and delivered at Nairobi this 23rd day of May 2005.
J G Nyamu
JUDGE