Agip (Kenya) Limited v Highlands Tyres Ltd

High Court, at Nairobi November 15, 2001

Visram J

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.

Held:

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.

Application dismissed.

Cases

1. Rawal v Mombasa Hardware Ltd [1968] EA 392

2. Allen v Sir Alfred Mc Alpine & Sons [1968] 1 All ER 543; [1968] 2 QB 229; [1968] 2 WLR 366

3. Ivita v Kyumbu [1984] 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

Statutes

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

Advocates

Mr Magan for the Plaintiff

Mr Oduol for the Defendant

[RULING] Civil Practice and Procedure- interlocutory injunction-where the suit property is due to be sold over default in loan repayment-where the applicant has previously made several promises and several proposals of repayment which he has never honoured-where the applicant has never complained about the interest rate or amendment of monthly installments until the property was threatened with sale-whether the court can restrain a mortgagee from exercising its statutory power of sale simply because the applicant is disputing the amount due-whether interim restraining orders can issue in such circumstances

Ssebaggala & Sons Electric Centre Ltd v Kenya

National Shipping Line Ltd

High Court, at Nairobi July 31, 2001

Mulwa J

Civil Case No 1723 of 2000

Civil Practice and Procedure – affidavit – form of affidavits - jurat – where the jurat is positioned separately overleaf – whether this amounts to an irregularity warranting the striking out of the affidavit – guidelines in determining whether technical irregularities are fatal to the interlocutory application accompanying the affidavit.

In an application to set aside a judgment, a preliminary objection was raised by the respondent to the effect that the supporting affidavit was irregular because its jurat appeared overleaf from the main page, and therefore it should be struck out. The applicant contended that the contents of the affidavit were not disputed and the irregularity did not go to the substance of the application and therefore the affidavit should not be struck out.

Held:

1. As a general rule, the jurat in affidavits should follow immediately after the text and should never be hanging alone on a different page.

2. Affidavits should never end on one page with the jurat following overleaf. The jurat should follow immediately after the end of the text. An affidavit which is in breach of this proposition is an irregular affidavit.

3. Order XVIII rule 7 allows the Court to accept an affidavit despite its defect of form. Striking down pleadings, like the affidavit complained of here, is an action of a most drastic nature and should be exercised with due care and judicial caution.

4. Technicalities which do not touch on the substance of the application or go to the root of the case and which do not prejudice the other side should not be used to emasculate or strike down court documents filed by one party. In this case, it had not been shown that the plaintiff would suffer any prejudice and that the irregularity was fundamental.

5. The proper procedure in such circumstances is for the offending party to seize the opportunity to apply for amendment once an irregularity has been pointed out.

Preliminary objection overruled.

Cases

1. Agip (K) Ltd v Jimmy Komo High Court Civil Case No 1738 of 2000

2. Boyes v Gathire [1969] EA 385

Texts

Jacob, IH et al (Ed) (1998) The Supreme Court Practice 1999 London:

Sweet & Maxwell Stevens & Sons Ltd Vol 1 order 41 rule 1/12.

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order XVII rule 7; order L rule

15(2)

Advocates

Mr Waweru for the Applicant.

Mrs Effendi for the Respondent.

[Ruling]-Civil practice and procedure –striking out-application to strike out suit on grounds that a wrong name of the Defendant had been used by the Respondent-where the application was brought under Arbitration Act and not under Civil Procedure Rules as no Civil Procedure Rules were cited in the application- where the applicant had suffered no prejudice- whether the omission of the words "Board of Trustees" could be cured by an amendment-Order 1 Rule 9

[RULING] Civil Practice and Procedure-parties to suits-addition of party-where the suit property was sold by auction upon default in repayment of a charge-where the applicant emerged as the successful bidder and was declared the purchaser-where the plaintiff lodged an application to restrain the first and second defendants from disposing of the property but did not join the applicant in the suit-whether the applicant should be added as a party to the suit

[RULING] Civil Practice and Procedure-judgment-setting aside-where the applicant seeks to set aside an ex-parte judgment on the basis that he was unable to file a defence because the court file was missing-where there is no evidence to show that the file ever went missing-whether the application should be allowed under such circumstances