[2024] WAT 1194 (KLR)

Tanathi Water Services Board v Mavoko Water and Sewerage Board and Export Processing Zones Authority (Tribunal Case 13 of 2012) [2024] WAT 1194 (KLR) (29 February 2024) (Ruling)

Neutral citation: [2024] WAT 1194 (KLR)

Republic of Kenya

In the Water Appeals Tribunal

Tribunal Case 13 of 2012

B Ochoi, Chair

February 29, 2024

Between

Tanathi Water Services Board

Appellant

and

Mavoko Water and Sewerage Board and Export Processing Zones Authority

Respondent

Ruling

Background Facts 1. The Respondent herein filed an application dated 28th November 2023 seeking the stay of directions given by the Tribunal on 10th November 2023 and that the Tribunal do review and set aside the directions and or orders issued on the said date and leave be granted to the respondent to file a fresh affidavit in support of the bill of costs. The Appellant Tana Athi water services Board has filed a Notice of preliminary objection to the respondent’s application. According to the Notice dated 29th November 2023, the Appellant objects to the application on the following grounds;1. The application dated 29th November 2023 is supported by counsels’ own affidavit /evidence andthe counsel has overstepped his boundary in the circumstances.2. Counsel cannot adduce evidence from the bar in the circumstances.3. The counsel is conflicted as he cannot wear the shoe of a counsel and witness at the same time, byswearing an affidavit on the most contentious issue in the dispute.4. It has not been shown why the respondent’s representatives are unavailable to swear the affidavit.

Appellants Submissions 2)The Appellant contends that the affidavit sworn by counsel raises highly contentious and unauthenticated issues on the value of the subject matter while an Advocate can only swear affidavits on non-contentious issues, pursuant to rule 8 of the Advocates (practice) rules. 3) The appellant relied on BAW V ENW [2019] eKLR which cited several other cases where it was held that an Advocate should not swear an affidavit on contentious or unauthenticated issues in any proceedings in respect of which he has conduct.

3. In response to the preliminary objection the respondent submitted that the P.O does not meet thelegal threshold as held in Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Limited [1969] EA 696. The respondent contends that a preliminary objection can only be raised on pure points of law and is not proper if any facts must be ascertained as raised in the preliminary objection.

4. The respondent contends that under order 19 Rule 3(1) of the civil procedure Rules 2010 affidavits shall be confined to such facts as the deponent was able of his own knowledge to prove: provided that in interlocutory proceedings, or by leave of the court, an affidavit may contain statements of information and belief showing the source and ground thereof. He submits that the supporting affidavit in question addresses itself on issues before the Tribunal which proceedings the deponent is in conduct of and as such the affidavit is on all fours with issues that the deponent has knowledge of and therefore is not in conflict with any written law. Apart from the Mukisa Biscuits case supra, the respondent relied on Turea Limited t/a Dr. Mattresses v Mohammed KECA 1271[KLR] and David Morton Silverstein V Atsango Chesoni [2002] eKLR.

Analysis and Determination 5. The Appellants P.O is that the deponent of the affidavit attached to the application dated 28/11/2023 who is also the Advocate for the respondent has overstepped his boundaries by swearing an affidavit in support of the application as it would be tantamount to adducing evidence from the bar and that he would be conflicted in acting as counsel and witness in the same matter. It is contended that the affidavit is in breach of Rule 8 of the Advocates practice rules which according to the Appellant only allows counsel to depose on non -contentious issues not highly contentious issues like in this case,

6. Rule 8 of the Advocate practice Rules provides as follows;“No advocate may appear as such before any court or tribunal in any matter in which he has reason to believe that he may be required as a witness to give evidence, whether verbally or by declaration or affidavit; and if, while appearing in any matter, it becomes apparent that he will be required as a witness to give evidence whether verbally or by declaration or affidavit, he shall not continue to appear: Provided that this rule does not prevent an advocate from giving evidence whether verbally or by declaration or affidavit on formal or non-contentious matter of fact in any matter in which he acts or appears.”

7. On the issue of competence of a supporting affidavit sworn by counsel I wish to rely on the case ofRepublic vs Attorney General (sued on behalf of the Ministry of Lands) & 2 Others ex parte south and central (Thika) Investments Limited [2015] eKLR where Justice Odunga stated as follows “The Law as I understand it is that an Advocate is not competent to swear an affidavit on disputed facts. An Advocate as an officer of the court, should avoid as much as possible situations which may place him in the embarrassing circumstances of having to go into the witness box in a matter in which he is acting as an Advocate and to swear an affidavit on issues of fact is one of the ways in which to invite such exposure”

8. The issue for determination in my view simply then is whether the issues deponed to by counselfor the respondent in the affidavit sworn on28th November 2023 are contentious and such issues that he may be required to as a witness to give evidence thereto. I have perused the impugned affidavit and noted that the same gives a background to what has been ongoing in this matter from 8/2/2013 when the Appeal herein was dismissed and the consequences. The deponent also referred to a ruling in Machakos ELC case No. 35 of 2010 in paragraph 8 of the affidavit, a ruling of any court is open to public scrutiny and available on touch of a button to the public. The Appellant herein has not singled out specifically which paragraph of the affidavit the Advocate has no knowledge of or is controversial or in contravention of the law. The Appellant ought to have been specific.

9. Order 19 Rule 3(1) of the Civil Procedure Rules 2010 provides that Affidavits shall be confined tosuch facts as the deponent is able of his own knowledge to prove, Counsel has deponed to facts relating to proceedings before this Tribunal which he is in conduct of and within his knowledge. I therefore find that the P.O lacks merit and the same is dismissed.

SIGNED AND DELIVERED AT NAIROBI THIS 29TH FEBRUARY 2024HON B.M OCHOICHAIRMANSIGNED BY: HON.BERNARD OCHOITHE JUDICIARY OF KENYA.WATER TRIBUNAL