Agip (Kenya) Limited v Highlands Tyres Ltd
High Court, at Nairobi November 15, 2001
Civil Case No 249 of 1997
Advocate - affidavit by advocate - whether it is proper for an advocate to depone to disputed matters of fact in a suit.
Affidavit - advocate - affidavit sworn by an advocate - matters to which an advocate may depone in an affidavit - application for dismissal of suit for want of prosecution - applicant’s counsel deponing that his client stood to suffer prejudice - whether counsel was the right person to depone to such matters.
Civil Practice and Procedure – dismissal of suit - dismissal for want of prosecution - matters the court will consider in application for dismissal- Civil Procedure Rules order XVI rule 5.
The plaintiff filed suit against the defendant on 5th February 1997, claiming Kshs 37,363,791.45 being the balance of the agreed price for goods sold and delivered by it to the defendant at the defendant’s request.
The defendant filed its defence on 18th March, 1997 in which it denied the plaintiff’s claim and set off and/or counterclaimed against the plaintiff. After a number of applications were made in the matter, on July 10, 2001, the defendant filed an application under order XVI rules 5(d ) of the Civil Procedure Rules seeking the dismissal of the suit for want of prosecution.
1. Under order XVIII rule 7 of the Civil Procedure Rules, the Court is empowered to receive any affidavit sworn for the purposes of being used in any suit notwithstanding any defect by misdescription of the parties or otherwise in the title or irregularity in the form thereof.
2. It is clear that the process of the judicial system requires that all parties before the Court should be given an opportunity to present their cases before a decision is given. It is, therefore, not possible that the Rules Committee intended to leave the plaintiff without a remedy and to take away the authority of the Court when it made order XVI rule 5 of the Civil Procedure Rules.
3. The principles governing applications for dismissal for want of prosecution that it must be shown are that:
a) the delay is inordinate;
b) the inordinate delay is inexcusable; or
c) the defendant is likely to be prejudiced by the delay.
4. Delay is a matter of fact to be decided on the circumstances of each case. Where a reason for the delay is offered, the Court should be lenient and allow the plaintiff an opportunity to have his case determined on merit. The Court must also consider whether the defendant has been prejudiced by the delay.
5. An advocate is not entitled to depone to matters that are in controversy.
By deponing to such matters the advocate courts an adversarial invitation to step from his privileged position at the bar into the witness box. He is liable to be cross-examined on his depositions. It is impossible and unseemly for an advocate to discharge his duty to the Court and to his client if he is going to enter into the controversy as a witness. He cannot be both counsel and witness in the same case.
1. Rawal v Mombasa Hardware Ltd  EA 392
2. Allen v Sir Alfred Mc Alpine & Sons  1 All ER 543;  2 QB 229;  2 WLR 366
3. Ivita v Kyumbu  KLR 441
4. Kisya Investment Ltd v Kenya Finance Corporation High Court Civil Case No 3504 of 1993
5. Small Enterprise Finance Co Ltd v George Gikubu Mbuthia High Court Civil Case No 3088 of 1994
6. Muthumu Farm Ltd & another v National Bank of Kenya & another Civil Case No 618 of 2000
7. Gathaiya, Geoffrey v Fortune Finance Ltd High Court Civil Case No 249 of 1998
1. Civil Procedure Rules (cap 21 Sub Leg) order XII rule 6; order XVI rules 2, 5(d); order XVIII rule 7; order XXXV rule 1; order L rule 1
2. Civil Procedure Act (cap 21) sections 3A, 81, 97
Mr Magan for the Plaintiff
Mr Oduol for the Defendant