REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYAHURURU

CIVIL CASE NO. E007 OF 2021

MALEWA RANCHING COMPANY LIMITED...................................PLAINTIFF/APPLICANT

-VERSUS-

JOSEPH NYUTU NG’ANG’A AND 146 OTHERS...................DEFENDANTS/RESPONDENTS

RULING/DIRECTIONS

1. This matter came for interparte hearing of application dated 24/11/2021 lodged by the Plaintiff/Applicant. 

2. However, Mr. Kago for the Plaintiff/Applicant raised the issues that the Respondents’ side had lodged 2 affidavits without leave of court and this should be expunged from the record.

3. These are affidavits dated 3^rd March, 2022 sworn by Mr. Maina Advocate for Respondents and another by John Njoroge Mburu sworn on 3^rd March, 2022.

4. The advocate’s affidavit purporting to amend affidavit of 18^th February, 2022 and also purporting to have been commissioned by the Plaintiff’s Company Secretary contrary to Section 4(1) & 250 of Companies Act, and provisions of Statutory Declaration and Oath.

5. Company Secretary aforesaid wrote letter denying appearance of deponent appearing before him for taking oath thus same is forgery.  Thus affidavit should be struck out.

6. The affidavits are word by word a replication and are purported to be sworn by John Mburu on 3^rd March, 2022 and also sworn by same commissioner.

7. Advocate swears affidavit to sanitize and amend oath.  He testifies why 2 affidavits differ.  The court is urged to deplore the way the Respondents’ advocate has been conducting himself and strike out 2 affidavits as they are fraud.  Thus all 3 Respondents’ as scole affidavit be truck out.

8. On his reply Mr. Maina for Respondent submitted that Applicant seek to strike out Respondents’ side affidavit sworn by John Mburu on 18^th February, 2022 (not on record yet).

9. The paragraphs aggrieving Applicant are No. 3 – 10, 37 & 38.  Thus ground to strike out Affidavit sworn on 18^th February, 2022 as it was also commissioned by Company Secretary of the Plaintiff/Applicant.

10. The Advocate concedes the stamp of Company Secretary was used to commission and commissioning was done in error.  Thus he filed another affidavit commissioned by Joseph Mwangi advocate.

11. He thus seeks to withdraw affidavits commissioned by Mwangi Wahome and sworn on 18^th February, 2022 but seeks affidavit of 3^rd March, 2022 to be deemed properly filed.

12. Mr. Kago rejoinder is that John Njoroge deponent never appeared before Commissioner of Oath, nor was there leave to file same affidavit.

13. Thus cannot be withdrawn but be struck out.

14. The 3 affidavits on Respondents’ side paint a picture of an advocate who abdicated from his profession and ethical duties thus the 3 of them are gross abuse of court process and ought to be struck out. 

15. The advocate for Applicant seeks court to discipline Mr. Maina advocate for the aforesaid recession of good conduct.

16. The court has observed the shortfall on the part of the Respondents’ Advocate in furtherance of his clients’ interest to the extent of defiling professional ethics and conduct.  The treatment of the process of swearing and signing affidavit by himself and his client leaves a lot to be desired and the court deplores and abhoves the same.

17. However, has confessed and conceded he strayed from the path of good conduct and defiled the process and seeks to have same sanitized though on the same breath desires to have court retain the tainted documents on record in the name of sympathizing with the client.

18. The provisions of Article 159 of the Constitution is not a cleanser of all short falls of the so called technicalities including fraud and forgeries on record.

19. It comes in handy for innocent and genuine mistakes not deliberate forgery and fraud.  The 3 affidavits on Respondents’ side are the realm of fraud and forgery thus Article 159 can not sanitize and cleanse them unlike the blood of Jesus which cleanses all sins but and except the abuse of the Holy Spirit of God.

20. Thus the 3 affidavits cannot stand and will thus be struck out with costs assessed at Kshs.5,000/- to be paid by the Advocate Maina personally.

21. Respondents will file a fresh affidavit and serve within 7 days.        

DATED AND SIGNED AT NYAHURURU THIS 17TH DAY OF MARCH, 2022.

………………………………..

CHARLES KARIUKI

JUDGE