|Civil Case 503 of 2010
|SAMWEL CHACHA RIOBA & GEOFFREY OTEKO ONTIERI v HEADLINK PUBLISHERS LIMITED & HARAMBEE SACCO SOCIETY LIMITED
|08 Apr 2011
|High Court at Nairobi (Milimani Law Courts)
|Hatari Peter George Waweru
|SAMWEL CHACHA RIOBA & another v HEADLINK PUBLISHERS LIMITED & another  eKLR
|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
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
R U L I N G
Together with the plaint the Plaintiffs filed chamber summons of the same date seeking temporary injunction pending disposal of the suit to restrain the Defendants from publishing or causing to be published words whose import or effect would be to defame the Plaintiffs. Upon that application an ex parte interim injunction was granted on 29th October, 2010 pending disposal of the application.
To the supporting affidavit are annexed a number of documents. They include the formal order of 29th October, 2010 together with a penal notice, and an affidavit of service of the order and the penal notice. There is also a copy of a story published in the Citizen Weekly dated 15th November, 2010 whose publication the Plaintiffs allege was in contempt of the order of 29th October, 2010.
For some reason the 2nd Defendant has filed a replying affidavit in response to the application, although clearly the application does not concern it.
“5. Every affidavit shall be drawn in the first person and divided into paragraphs numbered consecutively which shall be confined as nearly as may be to a distinct portion of the subject.”
An affidavit sworn jointly by two or more persons which states –
is drawn in the first person plural. It is not drawn in the second or third person. “You” is second person. “They” is third person.
There is absolutely nothing wrong with the supporting affidavit jointly sworn as it is by the Plaintiffs. It is drawn in the first person (albeit plural) as required by rule 5 of Order XVIII.
The affidavit of service annexed to paragraph 6 of the supporting affidavit which is sworn by the process server called Danson M. Mbote merely states in paragraphs 2 and 3 that on 15th November, 2010 he received copies of the order and penal notice with instructions to effect service thereon upon the 1st Defendant; and that on the same day he went to Town House,3rd Floor where he served the 1st Defendant who refused to sign but retained copies of the order and penal notice.
It must be recalled that the application herein is directed at the directors of the 1st Defendant. So, those directors ought to have been properly identified and personally served with the order and penal notice. This was not done. Upon that ground of want of proper service alone, the application must fail.
There is also another issue. By the same affidavit of service mentioned above, the order and penal notice were served on 15th November, 2010. The time of service is not indicated.
Having considered the written submissions filed on behalf of the Plaintiffs and the 2nd Defendant, including the cases cited, I find no merit in this application. It is hereby dismissed with costs to the 2nd Defendant. It is so ordered.
DATED AT NAIROBI THIS 1ST DAY OF APRIL, 2011