Case Metadata |
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| Case Number: | Misc Appli 169 of 2004 |
|---|---|
| Parties: | Republic v National Environment Management Authority (NEMA); Public Complaints Committee; City Council of Nairobi ex parte Greehnills Investments Ltd; Market Masters Ltd; Sugar Candy Ltd |
| Date Delivered: | 23 May 2005 |
| Case Class: | Civil |
| Court: | High Court at Nairobi (Milimani Law Courts) |
| Case Action: | |
| Judge(s): | Joseph Gregory Nyamu |
| Citation: | Republic v National Environment Management Authority & 2 others exparte Greenhills Investment Limited & 2 others [2005] eKLR |
| Case Summary: | [RULING] Civil Procedure - form of affidavits - objection to affidavits on the ground that they were not confined to facts which the deponent was able to prove of his own knowledge - that they related to contentious matters and which should not be deponed to by an advocate - Civil Procedure Rules order 18 rule 3 - whether points of objection had merit. |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISCELLANEOUS APPLICATION NO 169 OF 2004
IN THE MATTER OF AN APPLICATION BY GREENHILLS INVESTMENTS
LIMITED, MARKET MASTERS LIMITED AND SUGAR CANDY LIMITED
FOR ORDERS OF PROHIBITION, CERTIORARI AND MANDAMUS
IN THE MATTER OF AN APPLICATION BY GREENHILLS INVESTMENTS LIMITED, MARKET MASTERS LIMITED AND SUGAR CANDY LIMITED FOR ORDERS OF PROHIBITION, CERTIORARI AND MANDAMUS
AND
IN THE MATTER OF THE ENVIRONMENTAL MANAGEMENT AND COORDINATION ACT OF 1999
AND
IN THE MATTER OF THE LOCAL GOVERNMENT ACT, CAP 265 LAWS OF KENYA
REPUBLIC .............................................................................. APPLICANT
VERSUS
NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY ................................................................... 1ST RESPONDENT
PUBLIC COMPLAINTS COMMITTEE ..................... 2ND RESPONDENT
CITY COUNCIL OF NAIROBI .................................... 3RD RESPONDENT
EX PARTE
GREENHILLS INVESTMENTS LIMITED
MARKET MASTERS LIMITED
SUGAR CANDY LIMITED
RULING
The objection raised in this matter when the application dated 10th May 2004 came for hearing before me is that the two affidavits sworn by Mr Mwenesi, the learned counsel for the applicant are a nullity and ought to be struck out:
a) Because they do not comply with the provisions of Order 18 rule 3 which stipulates that affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove
b) Because they relate to contentious matters and an advocate ought not depone on contentious matters as this is specifically prohibited in the rules made under the Advocates Act
The court has considered the submissions of counsel. As regards the first objection a careful scrutiny of the affidavits indicate that the substance and content of the affidavits substantially relate to the court record/or archives. There can never be a better deponent than an advocate on issues relating to archives or court records. Such matters are within an advocates knowledge. I do not think O 18 does apply to Judicial review and even if it did the objection cannot be sustained for the two reasons given above.
Turning to the second objection I find nothing contentious with an advocate deponing on the state of the court record. Any contention can always be resolved by the court looking at the record and the possibility of an advocate descending into the arena of contest are remote. In the instant case reference is clearly made to the affidavit of Professor Pitt Situma sworn on 7th April 2005 which affidavit represents the factual base of the application.
In the result the objections are disallowed with costs to the applicant. Application to be set down for hearing on merit.
DATED and delivered at Nairobi this 23rd day of May 2005.
J G Nyamu
JUDGE
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