[2025] KECPT 92 (KLR)

Times U Sacco Society Limited v Joseph (Tribunal Case 406 of 2013) [2025] KECPT 92 (KLR) (30 January 2025) (Ruling)

Neutral citation: [2025] KECPT 92 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 406 of 2013

Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

January 30, 2025

Between

Times U Sacco Society Limited

Claimant

and

Kennedy Kaburu Joseph

Respondent

Ruling

1. This ruling dispenses with the Respondent’s Notice of Motion Application dated 21st March 2023 supported by an Affidavit which this court notes that it belongs to a person stranger to this suit, but sworn by Kennedy Kaburu Joseph. The Application is brought under Order 10 Rule 11 and Order 22 Rule 22 of the Civil Procedure Rules and Section 3, 3A, 63 (E) of the Civil Procedure Act and All enabling Provisions of the Law. The application seeks the following orders: 1. Spent

2. Spent

3. Spent

4. Spent

5. That this Honourable Tribunal be pleased to stay execution of judgment and decree herein together with all Consequential Orders including lifting of the Warrant of Arrest and Committal to Civil Jail against the Respondent/Judgment Debtor pending interparties hearing of this Application.

6. That this Honorable Tribunal be pleased to stay execution of judgment and decree herein together with all consequential orders including lifting of the Warrant of Arrest and committal to civil jail against the judgment debtor pending hearing and determination of this application.

7. That this Honourable tribunal be pleased to set aside the judgment decree and all consequential orders herein and the Respondent/judgment debtor be granted unconditional leave to defend the matter.

8. That cost of this application be provided for.

2. This court will dwell with the issue of the Supporting Affidavit first.

3. We note that the Supporting Affidavit to the Application dated 21st March 2023 belongs to one ERNEST MURIU and deponed to by the Applicant herein. The question before this tribunal is whether the Affidavit is fatally defective.

4. First that the court does indeed have power to cure defects in an Affidavit. Order 19 Rule 7 of the Civil Procedure Rules, 2010. Irregularity in form of AffidavitThe court may receive any affidavit sworn for the purpose of being used in any suit notwithstanding any defect by mis-description of the parties or otherwise in the title or other irregularity in the form thereof or on any technicality.Further in the case of East African Court of Appeal Case of Premchand Raichand & Another Ltd Vs Quarry Services & Others [1969] E.A. 514 the court was also considering several defects and omissions, it stated thus:“It has repeatedly been said by this court that affidavits based on information must disclose the sources of information…This is not merely a matter of form but goes to the essential value of the affidavit…But since the source of the information may have been unreliable, the affidavit can have no evidential value…The defects in the applicants affidavits have nothing to do with the misdescription of parties, which I must hold to be parties in the suit not the deponents...The irregularities herein are not restricted to the form but go to the evidential value of the affidavits themselves…”

5. This Tribunal notes that the law is lenient in cases where there are defects of form in the Affidavit. Therefore, the question before us is whether the defects in this case are of form or of substance? Defects of substance go to the root of the Affidavit, and we are inclined to believe that in a case as this one where it is not clear who the Affidavit belongs to, it goes to the root of the affidavit. This court cannot tell whether the Affidavit belongs to ERNEST MURIU, whose the description seem to belong, or to the applicant herein, who signed the Affidavit. Ernest Muriu is a stranger to this case. Without this court knowing who the affidavit belongs, then it is believed that this affects the whole substance of the affidavit and that the same is fatally defective.

6. In the case of Mohammed Haji Hussein & 6 others v Mandera Water and Sewerage Company Ltd & 2 others; County Commissioner, Mandera County & 2 others (Interested Parties) [2021] eKLR, the court in holding that issues raised regarding affidavits are not mere technicalities that can be cured by reference to Article 159 of the Constitution, referred itself to the Supreme Court decision in the case of Patricia Cherotich Sawe v Independent Electoral & Boundaries Commission (IEBC) & 4 others [2015] eKLR in a unanimous decision that stated that:“Although the Appellant invokes the principle of prevalence of substance over form, this Court did single in Law Society of Kenya v The Centre for Human Rights and Democracy & 12 others, Petition 14 of 2013 that "Article 159(2) (d) of the Constitution is not a panacea for all procedural shortfalls" Not all procedural deficiencies can be remedies by Article 159. .."

7. Further in East African Court of Appeal Case of Premchand Raichand & Another Ltd Vs Quarry Services & Others [1969] E.A. 514 where the court was also considering several defects and omissions, it stated thus:“It has repeatedly been said by this court that affidavits based on information must disclose the sources of information…This is not merely a matter of form but goes to the essential value of the affidavit…But since the source of the information may have been unreliable, the affidavit can have no evidential value…The defects in the applicants affidavits have nothing to do with the misdescription of parties, which I must hold to be parties in the suit not the deponents...The irregularities herein are not restricted to the form but go to the evidential value of the affidavits themselves…”

8. The defects presented in the Supporting Affidavit accompanying the Notice of Motion in question go to the evidential value of the Affidavit itself by virtue of not being there a clear owner of the affidavit. The same is hereby stuck out.

9. The question that arises then is whether the notice of motion application dated 21st March 2023, and which is the subject of the ruling herein can stand without the supporting affidavit. In the case of Maureen Nyambura Ngigi Warui v Board of Directors, Kenya Power & Lighting Company Limited & 2 others [2020] eKLR , where the court struck out a supporting affidavit for being substantially defective, the court held that“For these reasons, I strike out both the motion and the Supporting Affidavit for being bad in law as the motion, without the Affidavit, cannot stand the test of evidentiary proof as required by law.”

10. The Applicant in his Application refers to the defective affidavit for grounds of the application. Therefore, by virtue of the affidavit being struck out, we find that the Application will be a hollow shell without the affidavit.

11. Flowing from above, we hereby strike out the affidavit in support of application dated March 21, 2023, as well as the notice of motion application dated March 21, 2023, with costs to the Respondent/Claimant.

File ordered as closed.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JANUARY, 2025. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 1.2025HON. BEATRICE SAWE MEMBER SIGNED 30. 1.2025HON. FRIDAH LOTUIYA MEMBER SIGNED 30. 1.2025HON. PHILIP GICHUKI MEMBER SIGNED 30. 1.2025HON. MICHAEL CHESIKAW MEMBER SIGNED 30. 1.2025HON. PAUL AOL MEMBER SIGNED 30. 1.2025TRIBUNAL CLERK MUTAIMiss Giathi advocate holding brief for Mrs. Wang’ombe advocate for Claimant- PresentKiogora Mugambi advocate for Respondent presentFile ordered as closed.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 1.2025