Stephen Bernard Oduor v Afro Freight Forwarders

High Court, at Mombasa

October 23, 2002

Onyancha J

Civil Case No 175 of 2002

Affidavit – form of affidavit - verifying affidavit - affidavit commissioned in Mombasa but Commissioner’s rubber stamp bearing a Nairobi address - whether this is an irregularity warranting the striking out of the affidavit - whether the striking out of a verifying affidavit necessarily means that the suit/ plaint should be struck out.

Affidavit – form of affidavit - replying affidavit - affidavit sworn by advocate - affidavit not stating that advocate had client’s authority to swear it - affidavit incompetent and struck out.

This was an application by the defendant to strike out the plaint on grounds inter alia that the accompanying verifying affidavit should be struck out for showing that it was sworn at Mombasa on 31.12.2002 when infact it was sworn by a Nairobi based Commissioner for Oaths. The plaintiff’s explanation was that the affidavit had been commissioned in Mombasa by an advocate who had offices in Nairobi. That the advocate had carried his rubber-stamp in his suitcase when he visited Mombasa and on being requested to commission the affidavit, he went ahead to do so.

Held:

1. Under the Civil Procedure Rules order XVIII rule 7, this court will in the exercise of its discretion accept an affidavit in evidence or proceeding nothwithstanding some irregularities on its face provided that such irregularities are not fundamental.

2. The exercise of the court’s discretion will be guided on the basis of what is best in the ends of justice and that the irregularity being excused in no way prejudices the opposite party.

3. The explanation given by the plaintiff was likely to be true and the court would accept it. Furthermore, an advocate who is granted a commission making him a Commissioner for Oaths has jurisdiction to practice it all over Kenya.

 4. The irregularity on the plaintiff’s affidavit did not go to its root. The fact that the affidavit was commissioned in Mombasa using a rubber stamp bearing the Commissioner’s Nairobi address did not detract from the substance of the proper commissioning of the affidavit or from the proper qualification and jurisdiction of the Commissioner.

5. Even if the court were to find the affidavit improper and to strike it out, the court would nevertheless rise to the higher calling of doing justice to the parties by not striking out an otherwise valid suit and instead giving the plaintiff an opportunity to rectify the situation by filing a proper verifying affidavit.

6. The replying affidavit was sworn by the plaintiff’s advocate and it is not stated that he had the plaintiff’s authority to do so. That affidavit was therefore sworn by a stranger as the deponent fails to reveal his source of authority to swear it.

7. That failure was a substantial defect which rendered the replying affidavit incompetent and the court would strike it out. Having been so struck out, the defendant’s application would stand unopposed but it was saved by the grounds of opposition filed by the plaintiff.

 Application disallowed.

Cases Microsoft Corporation v Mitsumi Computer Garage Ltd [2001] 2 EA 460

Texts

Simonds, V et al (Eds) (1956) Halsbury’s Laws of England London: Butterworths and Co Ltd 3rd Edn Vol 15 p 469

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order VII rule 1(2); order XVIII rule 7

2. Oaths and Statutory Declarations Act (cap 15) section 5

Advocates

Mr Oruko Nyawida for the Plaintiff