[2004] KEHC 2210 (KLR)
The court held that the omission of the deponent's name in the jurat of the plaintiff's replying affidavit did not render it incurably defective, as section 5 of the Oaths and Statutory Declarations Act only requires the place and date to be stated. The affidavit in question complied with this requirement. Although...
Source-derived case information.
- Citation
- [2004] KEHC 2210 (KLR)
- Parties
- Plaintiff: Said Karama Hantoosh; Defendant: Swaleh Karama Hantoosh
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 113 of 2001
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution dismissed; plaintiff to pay costs of the application.
- Legal Topics
- Dismissal for Want of Prosecution, Affidavit Defects, Costs Award, Land Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Said Karama Hantoosh
Plaintiff
Swaleh Karama Hantoosh
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution under Order 16 Rules 5 and 6 of the Civil Procedure Rules.
- 2 Whether the plaintiff's replying affidavit is fatally defective for not stating the deponent's name in the jurat.
- 3 Whether justice requires the suit to be heard on its merits despite delay.
Ratio Decidendi
The court held that the omission of the deponent's name in the jurat of the plaintiff's replying affidavit did not render it incurably defective, as section 5 of the Oaths and Statutory Declarations Act only requires the place and date to be stated. The affidavit in question complied with this requirement. Although the plaintiff failed to provide a satisfactory explanation for the delay in prosecuting the suit, the court found that dismissing the suit on a technicality would not serve justice, particularly since the dispute involved land ownership between brothers. The court therefore declined to dismiss the suit for want of prosecution and instead dismissed the defendant's application,...
Court Disposition
Application for dismissal for want of prosecution dismissed; plaintiff to pay costs of the application.
Orders
- The application to dismiss the suit for want of prosecution is dismissed.
- The plaintiff shall pay the defendant the costs of this application.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL CASE NO. 113 OF 2001
SAID KARAMA HANTOOSH …………………………. PLAINTIFF
- Versus -
SWALEH KARAMA HANTOOSH …………………….. DEFENDANT
R U L I N G
This suit was filed on the 7th March 2001. The last time it was before a judge was on the 18th October 2001. The defendant has therefore applied by way of a notice of motion brought under Order 16 Rules 5 and 6 of the Civil Procedure Rules to have it dismissed for want of prosecution. In response the plaintiff swore a replying affidavit alleging that he had difficulty tracing the court file when he wanted to fix the case for hearing.
Mr. Kalama for the defendant/applicant challenged the competence of the replying affidavit. He submitted that the affidavit does not give the name of the deponent in the jurat and is therefore incurably defective and should be ignored. He cited for this proposition the case of West Kenya Sugar Company Ltd. -Vs- P.J. Shah & 2 others Nairobi HCCC No. 907 of 1999 and section 5 of the Oaths and Statutory Declarations Act Cap 15 of the Laws of Kenya.
I do not think that failure to state the name of the deponent at the jurat makes the affidavit incurably defective. There is no requirement in section 5 of Cap 15 to state the name of the deponent in the jurat. That section provides that:-
“Every Commissioner for Oaths before whom any Oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the Oath or affidavit is taken or made.”
The affidavit in the case of West Kenya Sugar Co. Ltd. was struck out because the place where it was sworn and the date when it was sworn were not stated. That is not the case here. The replying affidavit in this case states at the jurat that it was sworn at Mombasa on the 20th January 2004. In the circumstances I overrule Mr. Kalama’s preliminary objection. I agree with Mr. Kalama that the plaintiff has not given any satisfactory explanation as to why he has not, for about two years now, fixed this case for hearing. However in view of the fact that this is a land matter and especially that the parties are brothers we shall not be doing justice to them if the suit is dismissed on a technicality. The suit should be heard and the issue of ownership of the suit piece of land be determined once and for all. In the circumstances I decline to dismiss this suit for want of prosecution and instead dismiss the application.
However because the plaintiff went to sleep I order that he should pay to the
defendant the costs of this application.
DATED this 24th day of February 2004.
D.K. Maraga
Ag.JUDGE