[2023] KEELC 20113 (KLR)
The court found that the 1st defendant, being a party to the suit, was entitled to file a replying affidavit and there was no evidence to support the plaintiffs' claim that she lacked authority to sue or represent herself. The court also noted that the supporting affidavit to the application was largely...
Source-derived case information.
- Citation
- [2023] KEELC 20113 (KLR)
- Parties
- Plaintiff: Peter H Tenna; Plaintiff: Wycliffe Winston Waita; Defendant: Sarah Joslyn; Defendant: Nakuru County Land Registrar; Defendant: Nakuru County Land Surveyor; Defendant: Nakuru County Land Control Board Chairman; Defendant: The Commissioner Of Lands; Defendant: Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E016 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs
- Judges
- A Ombwayo
- Legal Topics
- Affidavit Evidence, Authority to Sue, Expunging Affidavit, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter H Tenna
Plaintiff
Wycliffe Winston Waita
Plaintiff
Sarah Joslyn
Defendant
Nakuru County Land Registrar
Defendant
Nakuru County Land Surveyor
Defendant
Nakuru County Land Control Board Chairman
Defendant
The Commissioner Of Lands
Defendant
Attorney General
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the replying affidavit filed by the 1st defendant should be expunged from the record for lack of authority to sue or represent others.
- 2 Whether the supporting affidavit to the application is comprehensible and sufficient to support the orders sought.
Ratio Decidendi
The court found that the 1st defendant, being a party to the suit, was entitled to file a replying affidavit and there was no evidence to support the plaintiffs' claim that she lacked authority to sue or represent herself. The court also noted that the supporting affidavit to the application was largely incomprehensible and did not provide a sufficient basis for the orders sought. Consequently, the application to expunge the replying affidavit lacked merit and was dismissed with costs to the respondents.
Court Disposition
application dismissed with costs
Orders
- The plaintiffs' Notice of Motion application dated 6th July 2023 is dismissed with costs.
Full Case Text
Judgment text and source record
33 paragraphs
Tenna & another v Joslyn & 5 others (Environment & Land Case E016 of 2022) [2023] KEELC 20113 (KLR) (22 September 2023) (Ruling)
Neutral citation: [2023] KEELC 20113 (KLR)
Republic of Kenya
In the Environment and Land Court at Nakuru
Environment & Land Case E016 of 2022
A Ombwayo, J
September 22, 2023
Between
Peter H Tenna
1st Plaintiff
Wycliffe Winston Waita
2nd Plaintiff
and
Sarah Joslyn
1st Defendant
Nakuru County Land Registrar
2nd Defendant
Nakuru County Land Surveyor
3rd Defendant
Nakuru County Land Control Board Chairman
4th Defendant
The Commissioner Of Lands
5th Defendant
Attorney General
6th Defendant
Ruling
1. This ruling is in respect of the plaintiffs Notice of Motion application dated 8th July 2023 which is expressed to be brought under order 19 rule 6, 7 and 8 and order 51 rule 1 of the Civil Procedure Rules and seeks the following orders;a.Spentb.Spentc.That costs of this application be provided for.
2. The grounds on the face of the application are that on the 19th May 2022, the 1st respondent filed a replying affidavit sworn on 13th May 2022. That at paragraph 23 the 1st respondent failed to reveal the other party she was deponing on behalf of. That the 1st respondent has not demonstrated to the court if she has authority to sue. That the 1st Plaintiff lodged a complaint with the Advocates Complaint Commission. That the commission made its decision based on the affidavit.
3. The application was supported by the affidavit of the 1st plaintiff Peter H. Tenna sworn on 6th July 2023. He deposed that the 1st respondent filed a replying affidavit sworn on 13th May 2022. He also deposed that the Advocates Complaints Commission made a decision on 6th April 2023 that relates to the present matter. He further deposed that the Advocates Complaints commission’s decision indicated that the advocate had not committed any offence of professional misconduct. The rest of the supporting affidavit contains averments that are difficult to comprehend.
4. There is no response filed to the application and neither are there submissions filed.
5. After considering the application, I have noted that the plaintiffs have only sought for interim orders that were seeking to expunge the replying affidavit filed on 13th May 2023 pending the hearing and determination of the application inter parties. It is my view that the appropriate relief would have been to seek orders pending the hearing and determination of the suit.
6. Moreover, I do find no merit in the application as the replying affidavit is properly on record as the deponent is a party and that she was sued as opposed to the allegations by the applicant that she lacks the authority to sue. Furthermore the supporting affidavit to the application herein is incomprehensible. In view of the foregoing, the plaintiffs Notice of Motion application dated 6th July 2023 lacks merit and is dismissed with costs.
RULING, DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 22ND DAY OF SEPTEMBER 2023. A O OMBWAYOJUDGE