Please Wait. Searching ...
|Case Number:||Commercial Case 43 of 2010|
|Parties:||C.M.C Motors Group Limited v Bengeria Arap Korir Trading as Marben School & Elizabeth Academy School|
|Date Delivered:||17 Oct 2013|
|Court:||High Court at Mombasa|
|Judge(s):||Mary Muhanji Kasango|
|Citation:||C.M.C Motors Group Limited v Bengeria Arap Korir Trading as Marben School & another  eKLR|
|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
COMMERCIAL CASE NO. 43 OF 2010
C.M.C MOTORS GROUP LIMITED ………………………………. PLAINTIFF
V E R S U S
BENGERIA ARAP KORIR trading as
MARBEN SCHOOL ……………………………….…………1ST DEFENDANT
ST. ELIZABETH ACADEMY SCHOOL …...……………..…… 2ND DEFENDANT
“Every Commissioner for Oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.”
“The second issue raised by the Applicant is that the application should be treated as unopposed because the replying affidavit is defective since it is not properly commissioned. Section 5 of the Oaths and Statutory Declaration Act provides that-
“Every Commissioner for Oaths before whom any oath or affidavit is taken or made … shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made in the jurat.”
The affidavit is shown as having been sworn at Machakos in the presence of Leah Mbuthia Commissioner of Oaths on 13th October 2003 but whose stamp reads Nairobi. If the affidavit was sworn at Machakos, it should have been before a Commissioner for Oaths in Machakos and the stamp should show likewise. The only conclusion one can reach on looking at this affidavit is that the place the affidavit was sworn and where it was commissioned are two different places. That is irregular and unacceptable and that affidavit is, therefore, fatally defective as it was not sworn in the presence of a Commissioner for Oaths. It is likely that stamp was just affixed. This Court would have no alternative but strike off the replying affidavit as it is not properly commissioned and that means that the application would stand unopposed.”
As it will be seen, the Court in that case was faced with a similar discrepancy in the affidavit as in this case.
“Oath is a solemn declaration accompanied by a swearing to God or a revered person or thing that one’s statement is true or that one will be bound to a promise … The legal effect of an oath is to subject the person to penalties for perjury if the testimony is false.”
Bearing that definition the question that needs to be answered is whether Wando took an oath before a Commissioner of Oaths. Looking at her affidavit it would seem that she signed the affidavit in Nairobi and the Commissioner of Oaths signed it in Mombasa. It will therefore seem that her affidavit fails to conform to the requirements of Section 5 of Cap 15. It is not an affidavit which is under oath. That being so the same is hereby struck out.
Dated and delivered at Mombasa this 17th day of October, 2013.