[2001] KEHC 673 (KLR)
The court held that the plaintiff's replying affidavit was incurably defective because the jurat appeared on a separate page from the text, thereby failing to meet the formal requirements for affidavits. The court found that Order XVIII rule 7 does not cure defects relating to the jurat, as it only addresses...
Source-derived case information.
- Citation
- [2001] KEHC 673 (KLR)
- Parties
- Plaintiff: Sakiholdings Limited; Defendant: Diamond Trust of Kenya Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1098 of 1998
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application
- Outcome
- Plaintiff's replying affidavit and grounds of objection struck out; opposition to the application limited to points of law.
- Legal Topics
- Affidavit Formal Requirements, Defective Affidavits, Grounds of Objection, Order Xxxix Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sakiholdings Limited
Plaintiff
Diamond Trust of Kenya Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the replying affidavit filed by the plaintiff is defective due to the placement of the jurat on a separate page.
- 2 Whether the court should disregard the plaintiff's grounds of objection under Order L rule 16.
Ratio Decidendi
The court held that the plaintiff's replying affidavit was incurably defective because the jurat appeared on a separate page from the text, thereby failing to meet the formal requirements for affidavits. The court found that Order XVIII rule 7 does not cure defects relating to the jurat, as it only addresses misdescription or irregularity in form, not the essential requirement that the jurat be part of the affidavit text. Consequently, the affidavit was deemed inadmissible. Additionally, the court disregarded the plaintiff's grounds of objection, as Order L rule 16 only permits the filing of a replying affidavit in opposition to interlocutory applications. With the affidavit and grounds...
Court Disposition
Plaintiff's replying affidavit and grounds of objection struck out; opposition to the application limited to points of law.
Orders
- The plaintiff's replying affidavit is struck out as incurably defective and inadmissible.
- The plaintiff's grounds of objection are disregarded as they are not permitted under Order L rule 16.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 1098 OF 1998
SAKIHOLDINGSLIMITED…………..………………..……PLAINTIFF Versus DIAMOND TRUST OF KENYA LTD……..……………..DEFENDANT
R U L I N G
The defendants have moved this court under Order XXXIX rules 1(a) (b) and 2 of the Civil Procedure Rule, Section 3A of the CPA and all enabling provisions of the law.
They seek several orders all relating to motor vehicle Registration Number KAE 592 D.
The plaintiffs who oppose the application have had sworn the replying affidavit by one Samson Kiama Macharia.
Mr. Jan Mohamed for the defendants took issue with the replying affidavit. It was her submission that the same, whose jurat appears on a page on its own and separate from the text is defective and should thus be disregarded by the court.
It was however, the submission of Mr. Wainaina for the plaintiff that the same was not defective. He relied on Order XVIII rule 7 which stipulates that
“The court may receive any affidavit sworn for the purpose of being used in any suit notwithstanding any defect by misdescription of the parties or otherwise in the title or other irregularity in the form thereof”
I am inclined to agree with the defence counsel, the above rule does not in any way refer to jurats. In my opinion the jurat must appear within the text of the affidavit in order to give it credence, and euthenics otherwise a situation would arise where the jurat is not related to the affidavit and hence the requirement that it appears within the text of the affidavit. The affidavit is thus incurably defective and is inadmissible. I have noted that the plaintiff had also filed its grounds of objection but I shall disregard them as they are no longer allowed under order L rule 16 which clearly stipulates that one shall only file a replying affidavit.
That being the case then, the application can only be opposed on points of law.
Dated and delivered this 25th July, 2001.
JEANNE W. GACHECHE
COMMISSIONER OF ASSIZE
Delivered in the presence of: Ms Jan Mohamed & Mr. Dar for the defendant/applicant Mr. Samson Kiama
Macharia – M. Director of Plaintiff Company present in court but his counsel not present.