Case Metadata |
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| Case Number: | Petition 17 of 2013 (Formerly Nairobi HC Petition 383 of 2008) |
|---|---|
| Parties: | Moses Mokoit v Defence Council & Attorney General |
| Date Delivered: | 20 Dec 2018 |
| Case Class: | Civil |
| Court: | High Court at Kitale |
| Case Action: | Ruling |
| Judge(s): | Hilary Kiplagat Chemitei |
| Citation: | Moses Mokoit v Defence Council & another [2018] eKLR |
| Advocates: | Mr. Kakoi for State Abari for the Respondent |
| Court Division: | Civil |
| County: | Trans Nzoia |
| Advocates: | Mr. Kakoi for State Abari for the Respondent |
| History Advocates: | Both Parties Represented |
| Case Outcome: | Notice of motion dismissed |
| 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 KITALE
PETITION NO. 17 OF 2013
(Formerly Nairobi HC Petition No. 383 of 2008)
MOSES MOKOIT.........................................................APPLICANT
VERSUS
THE DEFENCE COUNCIL............................1ST RESPONDENT
ATTORNEY GENERAL................................2ND RESPONDENT
R U L I N G
1. The notice of motion dated 12/6/2009 seeks to strike out the petition herein. The same is supported by the affidavit of Brigadier Francis Maina Murgor sworn on 25/2/2009. The substance of the said motion is the attached affidavit, annexture FMMI by the petitioner disowning this petition.
2. The petitioner on the other hand vide his replying affidavit dated 5/3/2018 denied the same. I have equally perused the grounds of opposition dated 1/03/2018.
3. Without delving into the details of the annextures and specifically whether the petitioner recanted his affidavit and the entire petition, I find that the issue is so weighty that the same cannot be simply decided by way of affidavits.
4. The proper recourse is to have this petition determined fully by way of oral evidence. Should one of the issues raised in recanting of the petition then evidence should be led to that effect.
5. It is premature in my view to have the petition simply struck out based on some contested facts especially based on oath. Striking out is of course one of the measures provided where the suit is hopeless and on the face of it unmeritorious.
6. The notice of motion is therefore dismissed. The costs shall abide the outcome of the petition.
Delivered, signed and dated at Kitlae this 20th day of December, 2018.
_________________
H.K. CHEMITEI
JUDGE
20/12/2018
In the presence of:
Mr. Kakoi for State
Abari for the Respondent
Court Assistant – Kirong
Ruling read in open court.
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