[2007] KEHC 2826 (KLR)
The court found that the affidavit in support of the application was incomplete because none of the attached exhibits were commissioned in accordance with the Oaths and Statutory Declarations Act. This non-compliance rendered the affidavit defective and unreliable. Since the application was supported solely by this...
Source-derived case information.
- Citation
- [2007] KEHC 2826 (KLR)
- Parties
- Appellant: Ruth Njeri Githinji; Respondent: Kibui Mutungu Hanniel
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 372 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Appeal
- Outcome
- Application struck out with costs to the respondent.
- Judges
- ARM Visram
- Legal Topics
- Affidavit Defects, Striking Out Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ruth Njeri Githinji
Appellant
Kibui Mutungu Hanniel
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Appeal
Legal Issues
- 1 Whether the application to strike out the appeal can be sustained when the supporting affidavit is incomplete and uncommissioned.
Ratio Decidendi
The court found that the affidavit in support of the application was incomplete because none of the attached exhibits were commissioned in accordance with the Oaths and Statutory Declarations Act. This non-compliance rendered the affidavit defective and unreliable. Since the application was supported solely by this defective affidavit, the entire application was deemed irregular and could not be sustained. Consequently, the application to strike out the appeal was itself struck out with costs awarded to the respondent.
Court Disposition
Application struck out with costs to the respondent.
Orders
- The application dated 23rd June, 2005 is struck out.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 372 of 2005
RUTH NJERI GITHINJI ……………………………. APPELLANT
VERSUS
KIBUI MUTUNGU HANNIEL …………………….RESPONDENT
RULING
In this application dated 23rd June, 2005, the Applicant/Respondent in this Appeal seeks an Order that the Appeal herein be struck out with costs. It is supported by an affidavit sworn by the Applicant. However, none of the seven exhibits to the affidavit have been commissioned in accordance with the Oaths and Statutory Declarations Act, Cap. 15. Accordingly, the affidavit in support is incomplete and cannot be relied upon, and this renders the entire application to be irregular.
The said application is, therefore, struck out with costs to the Respondent.
Dated and delivered at Nairobi this 17th day of May, 2007.
ALNASHIR VISRAM
JUDGE