[2019] KEHC 9598 (KLR)
The court found that when Joseph Irungu Mwangi Advocate commissioned the plaintiff’s verifying affidavit on 4th July 2014, he was not on record for the plaintiff, who was acting in person at the time. The advocate only came on record for the plaintiff later, on 15th October 2018. Therefore, there was no...
Source-derived case information.
- Citation
- [2019] KEHC 9598 (KLR)
- Parties
- Plaintiff: Stephen Wanyee Roki; Defendant: K-Rep Bank Limited; Defendant: City Council of Nairobi; Defendant: David Waweru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1 of 2011
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs to the plaintiff
- Judges
- MM Kasango
- Legal Topics
- Preliminary Objection, Verifying Affidavit, Commissioner for Oaths, Procedure Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Wanyee Roki
Plaintiff
K-Rep Bank Limited
Defendant
City Council of Nairobi
Defendant
David Waweru
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the verifying affidavit sworn on 4th July 2014 offends Section 4(1) of the Oaths and Statutory Declarations Act, Cap 15 Laws of Kenya.
- 2 Whether the advocate who commissioned the affidavit was on record for the plaintiff at the material time.
Ratio Decidendi
The court found that when Joseph Irungu Mwangi Advocate commissioned the plaintiff’s verifying affidavit on 4th July 2014, he was not on record for the plaintiff, who was acting in person at the time. The advocate only came on record for the plaintiff later, on 15th October 2018. Therefore, there was no contravention of Section 4(1) of the Oaths and Statutory Declarations Act, Cap 15. The preliminary objection by the 2nd Defendant was without merit and was dismissed with costs awarded to the plaintiff.
Court Disposition
preliminary objection dismissed with costs to the plaintiff
Orders
- Objection number 2 in the Preliminary Objection dated 21st November 2018 filed by the 2nd Defendant is dismissed with costs to the Plaintiff.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION-MILIMANI
CIVIL CASE NO. 1 OF 2011
STEPHEN WANYEE ROKI .................................................................PLAINTIFF
VERSUS
K-REP BANK LIMITED............................................................1ST DEFENDANT
CITY COUNCIL OF NAIROBI................................................2ND DEFENDANT
DAVID WAWERU.......................................................................3RD DEFENDANT
R U L I N G
1. This ruling relates to a Preliminary Objection raised by the 2nd Defendant. That Objection is dated 21st November 2018. The 2nd Defendant abandoned Objection No. 1 and No. 3. It however proceeded with Objection No. 2 as follows:
“That the verifying affidavit sworn on 4th July 2014 offends the mandatory provision of Section (1) of the Oaths and Statutory Declaration Act, Cap 15 Laws of Kenya, as Mr. Joseph Irungu Mwangi of Irungu Mwangi Nganga T. T. & Co. Advocates who commissioned the said verifying affidavit is the Advocate on record for the Plaintiff.”
2. Section 4(1) of Cap 15 provides:
“A commissioner for oaths may, by virtue of his commission, in any part of Kenya, administer any oath or take any affidavit for the purpose of any court or matter in Kenya, including matters ecclesiastical and matters relating to the registration of any instrument, whether under an Act or otherwise, and take any bail or recognizance in or for the purpose of any civil proceeding in the High Court or any subordinate court:
Provided that a commissioner for oaths shall not exercise any of the powers given by this section in any proceeding or matter in which he is the Advocate for any of the parties to the proceedingor concerned in the matter, or clerk to any such Advocate, or in which he is interested.”
3. To ascertain whether there is any ground for the Objection raised it is necessary to consider when the Plaintiff filed his pleadings and who then represented him.
4. The Plaintiff filed its original Plaint on 5th January 2011. That Plaint was filed on the Plaintiff’s behalf by the firm of Advocates, Anambo & Co Advocates. The verifying affidavit was commissioned by Hayanga Advocate.
5. The Plaintiff was represented, thereafter, by the firm of D. P. Kinyanjui Advocate.
6. The Plaintiff on 7th April 2011 filed an Amended Plaint through the law firm of Omondi Ombago Advocate. That amended Plaint was not supported by a verifying affidavit.
7. On 4th December 2012, the Plaintiff filed notice to act in person.
8. While the Plaintiff was acting in person, he filed another amended Plaint on 7th July 2014. The verifying affidavit in support of that amended Plaint was commissioned by Joseph Irungu Mwangi on 4th July 2014.
9. On 15th October 2018 the firm of Irungu Mwangi Advocates filed a notice of change to act for the Plaintiff.
10. From the above summary it is clear that when Joseph Irungu Mwangi Advocate commissioned the Plaintiff’s verifying affidavit, on 4th July 2014, he was not acting and he was not on record for the Plaintiff. The Plaintiff was by then acting in person. It follows that Joseph Irungu Mwangi Advocate was not in breach with Section 4 (1) of Cap 15 when he commissioned the Plaintiff’s verifying affidavit.
11. From the above analysis, it becomes clear that there is no merit in the 2nd Defendant’s Preliminary Objection dated 21st November 2018, in as far as it concerns Objection number 2. That Objection is dismissed and since the costs follow the event the costs are awarded to the Plaintiff.
12. In the end the Objection number 2 in the Preliminary Objection dated 21st November 2018, filed by the 2nd Defendant is dismissed with costs to the Plaintiff.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI this5thday of MARCH,2019.
MARY KASANGO
JUDGE
Ruling ReadandDeliveredinOpen Courtin the presence of:
Sophie..………………………COURT ASSISTANT
.......................………………COUNSEL FOR THE PLAINTIFF
...................………………….COUNSEL FOR THE 1ST DEFENDANT
...................………………….COUNSEL FOR THE 2ND DEFENDANT
...................………………….COUNSEL FOR THE 3RD DEFENDANT