Kamlesh Mansukhlal Damji Pattni v Nasir Ibrahim Ali, Dinky International SA & World Duty Free Company Limited
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Admissibility of argumentative and opinion content in affidavits
Argumentative propositions and expressions of opinion masquerading as factual depositions are oppressive and liable to be struck out under Order XVIII rule 6.
The court examined the underlined portions of Muite's affidavit and agreed they were fraught with argumentative propositions and expressions of opinion rather than facts. Since the Evidence Act applies to affidavits, legal opinions and hearsay are inadmissible. Order XVIII rule 6 donates power to strike out scandalous, irrelevant or oppressive matter, the three characteristics being read disjunctively.
Whether an advocate may swear a replying affidavit for a party
An advocate may swear an affidavit for a client on facts within the advocate's own knowledge, or where the client is not readily available and sources of information are disclosed; such an affidavit is not struck out merely because its maker is an advocate.
The court noted there is no express rule prohibiting advocates from swearing affidavits for clients. Muite possessed the facts stated and explained that his clients were scattered around the world and not readily available. The affidavit in the Kenya Horticultural Exporters case was itself sworn by an advocate and was not struck out for that reason. The remaining portions were therefore allowed to stand.
Treatment of affidavits sworn on information and belief
Following the post-1963 trend, a deponent need not expressly distinguish what is sworn on knowledge and what on information and belief; the court determines the source from a clear reading and rejects only offending portions.
The court traced the law from the strict Standard Goods line of cases, which required express demarcation on pain of rejection, through Nandala v Father Lyding and Camille v Merali, which introduced equitable principles and substantive over formal scrutiny. The proviso to Order XVIII rule 3(1) permits statements of information and belief in interlocutory proceedings if sources and grounds are shown.
Legal principles established
#- The Evidence Act applies to affidavits presented to any court, so rules of admissibility and relevancy apply; hearsay and legal opinions are for exclusion.
- Affidavits must be confined to facts the deponent can prove of his own knowledge; statements of information and belief are permitted only if sources and grounds are shown, and the main body must remain facts within the deponent's knowledge.
- The three grounds for striking out affidavit material - scandalous, irrelevant or oppressive - are read disjunctively, and retention of averments transgressing rule 3(1) without leave is oppressive.
- There is no express prohibition against an advocate swearing an affidavit on behalf of a client on facts the advocate can prove of his own knowledge, or where the client is not readily available and sources of information are disclosed.
- Since 1963 courts examine the affidavit themselves to determine which averments emanate from which source, and reject only the offending portions rather than the entire affidavit.
Court orders
#- 1.Upheld the preliminary objections raised against the replying affidavit
- 2.Struck out the underlined portions of the affidavit sworn on 31st January 2005 by Paul Kibugi Muite, in paragraphs 4(a), (b), (c), (d), (e), (f), (i) and 7
- 3.Declined to strike out the remaining parts of the replying affidavit
- 4.The main application may now be set down for hearing
- 5.Costs in the application
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 418 of 1998
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules; Appellate Jurisdiction Act (Cap 9)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- World Duty Free Company Limited (Under Receivership) v Kenya Commercial Bank & Others (injunction on sale of charged properties)[2000] KEHC 210 (KLR)30 May 2000applied
- World Duty Free Company Limited (Under Receivership) v Kenya Commercial Bank & Others (injunction on sale of charged properties)[2000] KEHC 210 (KLR)30 May 2000
Cite this brief
#Cite this brief
Caselaw, "Kamlesh Mansukhlal Damji Pattni v Nasir Ibrahim Ali, Dinky International SA & World Duty Free Company Limited", Case Analysis (2005). Civil Application 354 of 2004 (UR.183/04). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/339/eng@2005-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.