[2022] KEHC 10141 (KLR)

Suri v Technoservice Limited & another; Nokia Corporation & 2 others (Interested Party) (Criminal Revision E099 of 2021) [2022] KEHC 10141 (KLR) (Crim) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10141 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E099 of 2021

JM Bwonwong'a, J

July 14, 2022

Between

Rajeev Suri

Applicant

and

Technoservice Limited

1st Respondent

Chief Magistrate Court

2nd Respondent

and

Nokia Corporation

Interested Party

Roschier Attorneys Ltd

Interested Party

Aapo Saarikivi

Interested Party

Ruling

(Being a ruling on the preliminary objection of the applicant dated 10/03/2022/) 1. The 1st respondent filed a notice of motion dated 08/06/2021 pursuant to article 159 (2) (d), Rule 9 of the Advocates (Practice) Rules, section 134 and 136 of the Evidence Act (Cap 80) Laws of Kenya, general principles of law and all other enabling laws; seeking the following orders.1. An order directing the firm of Anjarwalla & Khanna LLP to cease acting in the matter against the 1st respondent.2. An order directing Mr. Taib Ali Taib, Advocate to cease acting in this matter.3. An order directing that the costs of this application be borne by Anjarwalla & Khanna LLP and Mr. Taib Ali Taib, Advocates.

2. During the pendency of the said application, the applicant (Rajeev Suri) filed a preliminary objection dated 10th March 2022 in response to the said notice of motion, seeking the striking out of the notice of motion for the following reasons.a)The supporting affidavit of Bulent Gulbahar sworn on 8th June 2021 which was allegedly not notarized.b)the said supporting affidavit for allegedly offending the mandatory provisions of section 88 of the Evidence Act.c)The said supporting affidavit was allegedly witnessed by Tasleem Sayani, who is said to be a solicitor in England and Wales.d)The annexures to the said supporting affidavit collectively marked as ‘BG’ have neither been authenticated nor serialized by a notary public.e)There is allegedly no notarial seal affixed to the jurat of the said supporting affidavit although it was purportedly sworn in Dubai in the UEA, which is a non-commonwealth country.

The Submissions of the Applicant- Rajeev Suri 3. Counsel for the applicant (Messrs Anjarwalla & Khanna LLP) submitted that the following matters are not contested. The supporting affidavit was executed in a foreign country namely at Dubai in the United Arab Emirates (UAE) and it is attested before a Commissioner of Oaths in Dubai.Furthermore, it is a matter of judicial notice that UAE is not a commonwealth country.

4. It is clear from the face of the subject supporting affidavit that its execution was witnessed by a solicitor of England and Wales. The said subject supporting affidavit does not have the seal and signature of a notary public.

5. Additionally, “a loose green sheet of blank paper has the words ‘BG’ written on them with 2 rubber stamps – one by Tasleem-Sayani and the other by James Berry & Associates Legal Consultants.”

6. Furthermore, “Several other documents are annexed to the affidavit without being sealed or marked as required by the Oaths and Declarations Act.”

7. Based on the foregoing matters, counsel has submitted that the point raised amounts to a preliminary point of law. Counsel further submits that the point so raised meets the threshold set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributor Ltd [1969] EA 696, which is that:“…. A preliminary objection is in nature of what used to be called a demurrer. It raises a pure point of law which if argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or what is sought is the exercise of judicial discretion.”

8. Counsel has further submitted that the supporting affidavit was executed in a foreign jurisdiction and for that reason the provisions of the Oaths and Statutory Declarations Act do not apply to such an affidavit. The reason being that the jurisdiction of a Commissioner for Oaths in terms of section 4 of that act donates power to administer any oath or take any affidavit for the purpose of any court matter in Kenya.

9. Counsel also cited Microsoft Corporation v Mitsumi Computer Garage Ltd & another [2001] eKLR, in which the court held that the Oaths and Statutory Declarations Act is inapplicable to affidavits taken outside Kenya and that the applicable provision would be section 88 of the Evidence Act.

10. In addition to the foregoing, counsel cited Peeraji General Trading & Company Limited, Kenya & another v Mumias Sugar Company Limited[2016] eKLR, in which the court held that:“……In England by virtue of Order 41 Rule 12 of the Rules of the Supreme Court, affidavits taken in Commonwealth are admissible in evidence without proof of the stamp, seal, or the position of the official position of the person taking the affidavit.”

11. In view of the foregoing authority counsel has submitted that the supporting affidavit executed by Bulent Guibahar, should have been notarized.

12. Counsel has further submitted that the supporting affidavit together with its annexures constitute the evidence of the respondent and for that reason; the annexures (exhibits) should have been serialized and sealed. Failure to do so is a fundamental defective and is not a mere technicality according to Musikari Nazi Kombo v Moses Masika Wetangula & 2 others [2013] eKLR.

13. The decision inMusikari Nazi Kombo v Moses Masika Wetangula & 2 others, supra, was reiterated in Francis A. Mbalanya v Cecilia N. Waema[2017] eKLR, in which the court held that the sealing and marking of annexures with serial letters or numbers is mandatory and failure to comply with that requirement leads to the striking out of the offending document.

14. Counsel has submitted that the exhibit (annexure) marked ‘BG’ is non-existent, because it is a loose fly paper, which is not notarized by a notary public and the documents annexed to the supporting affidavit are not properly sealed and serialized. These documents should be expunged from the court record.

The Submissions of the 1st Respondent. 15. Counsel for the 1st respondent has submitted that what is raised as a preliminary objection is not a preliminary objection within the ambit set out in the locus classicus case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributor Ltd, supra. He has therefore submitted that it ought to be struck out.

16. Furthermore, counsel has submitted that the notice of motion is accompanied by a proper supporting affidavit sworn on 8th June 2021 by a commissioner of oaths in accordance with section 88 of the Evidence Act (Cap 80) Laws of Kenya. It is also counsel’s submission that the role of the supporting affidavit was to support the correctness of the averments in the notice of motion. By a resolution of the board of the company, the director was authorized to swear the affidavit in support of the application. It is pursuant to that resolution that Mr. Bulent Gulbahar appeared before a commissioner of oaths (Tasleem Sayani) on 8th June 2021 at Dubai in the United Arab Emirates (UAE) and swore the supporting affidavit as required by the law of the UAE.

17. It is also counsel’s submission that it is not contested that the supporting affidavit and the annexures were commissioned in the UAE and the laws of Kenya in that regard are not applicable. According to counsel it suffices that the said document and annexures are valid according to the laws of England.

18. Counsel further submitted that the real issue is whether the said affidavit is valid for use in Kenyan courts. In that regard counsel cited Microsoft Corporation v Mitsumi Computer Garage Ltd & Another, supra, in which the court held that chapter 5 of the Laws of Kenya do not apply to an affidavit commissioned outside Kenya by a foreign person. That court further held that section 88 of the Evidence Act (Cap 88) Laws of Kenya allowed the admission in Kenya courts of documents which would be admissible in any Court of Justice in England.

19. Based on the foregoing authority counsel submitted that section 5 of the Oaths and Statutory Declarations Act (Cap. 15,) Laws of Kenya allows the admission into evidence an affidavit commissioned by a solicitor from England in the Kenyan courts as stated in the jurat.

20. Furthermore, counsel submitted that under English law a commissioner of oaths is a person appointed by the Lord Chancellor to administer oaths or take affidavits and all practising solicitors have these powers; but they are not allowed to use them in proceedings in which they are acting for any of the parties or in which they have an interest. See section 1 of the Commissioner of Oaths Act, 1889.

21. Counsel has also submitted that under Order 41 Rule 12 of the Supreme Court, England an affidavit commissioned by a solicitor in England and Wales is admissible in evidence in the Kenyan courts; notwithstanding any irregularities in the affidavit.

22. Additionally, counsel submitted that this court is entitled to invoke section 3 of the Judicature Act (Cap 8) Laws of Kenya in order to administer substantive justice without undue regard to procedural technicalities. Counsel also cited Tanga Investments (K) Ltd v N.F. Corporation [2021] eKLR which restates the principles embodied in section 3 of the Judicature Act.

23. Furthermore, counsel submitted that the defects in the supporting affidavit are technicalities which the court is urged to ignore in favour of substantive justice as constitutionally required by article 159 of the 2010 Constitution of Kenya.

24. It is for the foregoing reasons that counsel has urged this court to find that the supporting affidavit and its annexures is not fatally defective and should dismiss the preliminary objection with costs.

Analysis and Determinations. 25. I have considered the preliminary objection, the submissions of the parties and the instructive authorities cited. As a result, I find the following to be the issues for determination.1. Whether the subject supporting affidavit which was commissioned in a non-commonwealth foreign territory is admissible in evidence in the courts of Kenya.2. Who bears the costs of this application?

Issue 1 26. It is common ground that the subject supporting affidavit and its annexures are not notarized by a notary public.

27. It also common ground that the said affidavit is not sealed and marked with serial numbers.

28. Furthermore, it is also common ground that the subject supporting affidavit was taken at Dubai in the UAE.

29. The really contested point is whether the subject supporting affidavit is admissible in evidence in the courts of this country. I find that the subject supporting affidavit was not notarized by a notary public; which is normally done in respect of affidavits that are commissioned outside Kenya excluding England and common wealth countries.

30. I take judicial notice that the UAE is not a commonwealth country.

31. I find that if the subject supporting affidavit had been commissioned by a solicitor either in England or in a commonwealth country, it would be admissible in evidence in the Kenyan courts. In this regard, I find as persuasive the decision of the court in Peeraji General Trading & Company Limited, Kenya & another v Mumias Sugar Company Limited [2016] eKLR, in which the court held that:''……In England by virtue of Order 41 Rule 12 of the Rules of the Supreme Court, affidavits taken in Commonwealth are admissible in evidence without proof of the stamp, seal, or the position of the official position of the person taking the affidavit.”

32. Furthermore, I find that section 1 of the Commissioner of Oaths Act, 1889, which is an English statute is inapplicable in Kenya in view of the provisions of section 88 of the Evidence Act (Cap 80) Laws of Kenya. The reason being that although it is a statute of general application, it is inapplicable by virtue of section 88 of the Evidence Act, because English statutes of general application are applicable subject to certain conditions as set out in the reception clause in section 3 of the Judicature Act. The existence of section 88 of the Evidence Act makes it inapplicable. It is equally important to point out that it is English common law, doctrines of equity, Procedure and practice in the of the Courts of Justice in England that was in force as at 12th August 1897, that is applicable to Kenya and not UK or British laws

33. I also find that the supporting affidavit and its annexures constitute evidence for the 1st respondent. And it is for this reason that the said annexures should have been sealed, serialized and marked as is the practice. The failure to do so is not a curable defect both under section 3 of the Civil Procedure Act (Cap 21) and under article 159 of the 2010 Constitution of Kenya. In that regard, I find as persuasive the observation of the court inMusikari Nazi Kombo v Moses Masika Wetangula & 2 others, supra, in which that court stated that the requirement to seal and serialize the annexures is mandatory and failure to comply with that requirement is a fundamental error and is not a technicality.

34. The contention by counsel for the 1st respondent that the subject supporting affidavit was to support the correctness of the averments in the notice of motion does not appreciate the point that the said affidavit and the annexures inseparably constitute the evidence of his client. In other words, without the annexures the said affidavit cannot stand on its own. The two are like Siamese twins.

35. In the circumstances, I find that the subject supporting affidavit is not notarized by a notary public. Additionally, it is also not sealed and serially marked by a notary public.

36. It therefore follows that the subject supporting affidavit is inadmissible in evidence in the courts of Kenya.

37. In the premises, I hereby uphold the preliminary objection with the result that the notice of motion is struck for being incompetent

Issue 2 38. The applicant has succeeded in opposing the notice of motion. And since costs follow the event, the costs of this application are hereby awarded to the applicant.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 14TH DAY OF JULY 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantMr. Kanja holding brief for Mr. Abass Esmail for the applicantMr. Ataka for the 1st RespondentMc Court holding brief for Mr. Taib (S.C) for 1st interested PartyMr. Okoth for 2nd & 3rd Interested Parties.