[2016] KEHC 8089 (KLR)
The court found that the affidavit sworn by the advocate for the applicants was not defective, as it disclosed that the facts were based on information from the petitioners, which is permissible in law. The preliminary objection and notice to cross-examine were deemed to lack merit and were considered attempts to...
Source-derived case information.
- Citation
- [2016] KEHC 8089 (KLR)
- Parties
- Applicant: S W; Applicant: J H; Respondent: C H
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 142 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection and Notice to Cross Examine Deponent
- Outcome
- preliminary objection and notice overruled; petitioners to proceed with application
- Judges
- DN Musyoka
- Legal Topics
- Mental Health Act, Guardianship, Custody Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
S W
Applicant
J H
Applicant
C H
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection and Notice to Cross Examine Deponent
Legal Issues
- 1 Whether an affidavit in support of an application can be sworn by the advocate for the applicants rather than by the applicants themselves.
- 2 Whether the preliminary objection and notice to cross-examine deponent have merit.
Ratio Decidendi
The court found that the affidavit sworn by the advocate for the applicants was not defective, as it disclosed that the facts were based on information from the petitioners, which is permissible in law. The preliminary objection and notice to cross-examine were deemed to lack merit and were considered attempts to delay the proceedings. The court overruled both the objection and the notice, allowing the petitioners to proceed with their application.
Court Disposition
preliminary objection and notice overruled; petitioners to proceed with application
Orders
- The preliminary objection and notice to cross-examine deponent are overruled.
- The petitioners are at liberty to proceed and prosecute their application dated 23rd April 2015.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
MISC. APPLICATION NO. 142 OF 2014
IN THE MATTER OF AN APPLICATION FOR CUSTODY MANAGEMENT AND APPOINTMENT OF A GUARDIAN
AND
IN THE MATTER OF THE MENTAL HEALTH ACT, CAP 248
AND
IN THE MATTER OF W H (A PERSON SUFFERING FROM MENTAL DISORDER)
S W……………….……………….…….1STPETITIONER
J H……………………..……..……….2ND PETITIONER
VERSUS
C H…………………….………………..RESPONDENT
RULING
1. This ruling is in respect of a Notice of Preliminary Objection and Notice to Cross-Examine Deponent both dated 26th June 2015 and filed herein by the respondent.
2. The two notices arise from the application field herein by the petitioners dated 23rd April 2015. .
3. The application dated 26th June 2015 essentially seeks amendment of the petition. The point raised by the respondent, if I understood it well, dwells on the fact that the affidavit in support was sworn by the advocate for the applicants rather than by the applicants themselves.
4. I have carefully perused through the offending affidavit. The deponent has stated in several paragraphs that he was deposing to matters of fact on information from the petitioners, which is permissible in law.
5. I do not think there is any merit in the objection raised and the notice. Both are intended, in my view, to delay the hearing and final determination of the matter. Let the matter be determined on its merits,
6. The objection and the notice are accordingly overruled. The petitioners are at liberty to proceed and prosecute their application dated 23rd April 2015.
DATED, SIGNED and DELIVERED at NAIROBI this 23RD DAY OF SEPTEMBER, 2016.
W. MUSYOKA
JUDGE